Guest column provided by Natalie MacDonald and Stuart Rudner, co-founders of the boutique employment law firm, Rudner MacDonald LLP
Natalie MacDonald is the Author of Extraordinary Damages in Canadian Employment Law.
Stuart Rudner is the Author of You're Fired! Just Cause for Dismissal in Canada.
Universities are expected to be institutions of higher learning, pursuing academic excellence and intellectual debate. One would think that those in positions of authority within the world of academia would be particularly vigilant in protecting the rights of their student population; it seems inconceivable that a student would have a request not to work with certain types of students granted, but recently, at York University in Ontario, a student succeeded in convincing the Dean that he should not be forced to interact with women for an online course he was taking, on the basis of religious grounds. His professor rightly denied this request, but the Dean of York allowed it.
Shortly thereafter, York passed a motion that there would be no accommodation requests granted if they had the effect of marginalizing a student or group of students. The student was advised that his request had been denied.
However, one must ask why was such an unreasonable and discriminatory request granted in the first place? And, what if that request was made in the workplace -- it could open Pandora's Box, where any person could cloak a discriminatory request not to interact with others on the basis of religion, creed or sexual orientation. Under this scenario, an employee could request that he not interact with, for example, lesbians, or people who are black, on the basis of his/her religion!
How could something like this even happen in Canada in the year 2014? Unfortunately, perhaps it is because organizations are so afraid of being sued for failing to accommodate that they have lost the sense of what is a proper request for accommodation. Many would argue that what they have lost is their common sense.
Canada's human rights legislation, both federal and provincial, allows employees to be able to request accommodation on the basis of certain, enumerated protected grounds under that legislation. If a legitimate request for accommodation, based upon a protected ground such as religion, is made, employers have a duty to accommodate up to the point of undue hardship.
If the employer does not, than the employee has a legitimate case for a failure to accommodate argument, and may take his or her case to a human rights Tribunal or civil court, if in Ontario. In that case, the employer will likely be liable for extraordinary damages, ranging from lost wages, to damages for the injury done to the person's dignity and self-respect. Obviously, though, this is only the case if the request itself is legitimate. If the request to accommodate is unreasonable, it is a different story.
If, as in the case of the York student, the actual request is illegitimate, than that is the end of the analysis, and the accommodation request can be denied. In that case, the student was obviously asking not to interact with women in his group, but blaming it on his religion.
In that regard, we do not know what his religion is, but we know of no religion that could possibly legitimize such a request. The University itself conducted some research in that regard and did not identify a religion that would preclude a male student from working with female students in a group setting. And, if there were such a religion, the fact that it would marginalize women, and perpetuate discriminatory conduct against them, should be sufficient to deny the request.
Last year in Canada, religion was used as both a sword and a shield. In Quebec, PQ leader Pauline Marois sought to ban the kippah, the turban, the hijab, and other visible religious symbols from the public sector, suggesting that in 5 years, all will be assimilated by the Quebec Charter of Rights ("Charter").
Thankfully, the PQ initiative has met with widespread condemnation, with the Québec government being accused of being racist and xenophobic. However, while religion is at the basis of both Marois' Charter and the Dean's allowance of the request, there is no legitimacy for either of these scenarios, and it is time that Canadians take a stand and speak out against this. It is only through voicing our concerns that we can hope to keep Canada the true, north, strong and free.
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