Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
The Duty to Accommodate: Happy to work on Christmas, but not on Yom Kippur
The culture of Christmas in Canada is pervasive. It is the highlight of the year for many Canadians, when work ceases for a day and families reunite. Every provincial government has designated it as a statutory holiday, allowing Western Christians the ability to participate fully in their religious experience without any expectation of professional achievement.
But, for many Canadians, the most important days on the calendar don’t fall out in late December. They don’t coincide with statutory holidays. How should educational institutions – as employers of people of varied religious and cultural backgrounds – deal with employees who don’t mind working on Christmas but need to take off days at different times of year for their own religious holidays?
The main case on this issue is Commission scolaire régionale de Chambly v. Bergevin. Three Jewish teachers employed by a local school board took a day off to celebrate Yom Kippur. The school board had granted them a leave of absence without pay and the teacher’s union sought reimbursement for that amount. The Supreme Court of Canada ultimately found for the union, and maintained that the school board had a duty to accommodate the needs of the teachers, short of such accommodation resulting in undue hardship (i.e. being unreasonably costly) for the school board.
The court acknowledged that the calendar of statutory holidays is discriminatory against non-Western Christian employees:
In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect. Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar. Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur. It thus inevitably follows that the effect of the calendar is different for Jewish teachers. They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work. In the absence of some accommodation by their employer the Jewish teachers must lose a day’s pay to observe their holy day.
It’s as simple as this: one group doesn’t have to work on their holidays, the other does. That’s discriminatory. The court held that this issue has to be resolved without adverse consequences to non-Western Christian employees. Logistically and legally, this is often dealt with by scheduling changes.
Educational institutions should review Chambly and similar decisions when drafting policies relating to employees and holidays to ensure that this issue is dealt with in advance with sensitivity to non-Christian groups.
If you enjoyed this post, make sure you subscribe to my RSS feed!
This was a very interesting read. The following article appeared in today’s Vancouver Sun. In it, Beverly McLachlin (chief justice SCC) advises that she foresees the the big SCC challenge to be how far the charter will go in recognizing Canadian diversity. I thought this article tied in nicely with your piece. Enjoy!
Malcolm P. MacPherson
http://www.vancouverbusinesslaw.ca
Supreme Court is balancing security, rights: top judge
McLachlin marks a decade of ‘measured, shrewd’ decisions
By Janice Tibbetts, Canwest News ServiceJanuary 6, 2010
Chief Justice Beverley McLachlin, who took over a court 10 years ago that was under siege from the political right, says the critics who accused the bench of overstepping its power seem to have gone away because their anxiety over the Charter of Rights has subsided.
McLachlin, who on Thursday marks one decade leading the Supreme Court Of Canada, Told Canwest News Service she expects the most pressing legal issues facing the court in the coming years will be where to draw the line on anti-terrorism initiatives and how to deal with the nation’s growing diversity as minorities challenge “established social order.”
In a rare interview in her corner office overlooking the snow-blanketed Ottawa River, McLachlin reflected on a decade in which terrorism erupted into an international preoccupation, the Supreme Court experienced a near turnaround in judges and vocal court bashers seem to have vanished.
“I don’t know why but there’s less anxiety perhaps about the Charter of Rights and Freedoms.
“I think people feel that it is a good thing on the whole, that it is not going to be simply a licence for judges to do simply what they want to do,” said McLachlin.
“I think people regard the Supreme Court of Canada and the justice system with some pride and they should. I am happy with my impression of how the court is perceived.”
McLachlin also acknowledged there may be less fodder for critics because many contentious charter rights were resolved before her time as chief justice and much of the last decade has been devoted to fine-tuning.
“Those big questions had to be resolved and they were resolved,” she said.
“However, there are new questions that continue to come up. I am sometimes a little surprised that we find ourselves in fairly new territory from time to time on the charter, but we also find ourselves sometimes doing fine-tuning or recalibrating decisions as new situations arise and require further consideration.”
Nevertheless, there have been dozens of landmark decisions in the last decade, in which the court approved gay marriage, dealt a final blow to the death penalty, upheld Canada’s embattled ban on child pornography, refused to make social hosts legally responsible for their drunk guests, declared there is a charter right to collective bargaining, and rejected a call to elevate health care to a constitutional right.
Under the leadership of outspoken charter champion Antonio Lamer in the 1990s, the Supreme Court was regularly accused by right-of-centre politicians and commentators of judicial activism — or overstepping the will of elected legislators.
Legal analysts have described the McLachlin court as more measured, shrewd and media savvy than the court of Lamer, who took on his critics with gusto. While she said she has no inside knowledge of cases that will come before the Supreme Court and other courts in the next few years, she expects judges will continue to weigh in on anti-terrorism measures.
“I think it’s obvious that one of the central issues at present and for the future will be finding the right balance between the need for security, on the one hand, versus the individual liberties and rights of people,” she said.
She also anticipates the court will be called upon to decide how far the charter will go in recognizing Canadian diversity.
“We have, of course, equality provisions and we have issues going through the courts on issues like polygamy, minority rights, religious rights, tensions between certain religious rights on the one hand and established social order on the other hand,” she said.
“These are the sorts of the things that will make their way before the courts in the future.”
© Copyright (c) The Vancouver Sun