Publications
January 2009
PFD | Labour
REASONABLE ACCOMMODATION

EMPLOYERS MUST ENSURE FULL CONSIDERATION IN THEIR ANALYSIS

By Étienne Morin Lawyer, Natale Screnci

On October 2 2008, the Human Rights Tribunal came to a decision in a case involving Madam Daniela Strauber and la Garderie éducative le Futur de l'enfant inc. (Québec (Commission des droits de la personne et des droits de la jeunesse c. Garderie éducative Le Futur de l'enfant inc. (T.D.P.) EYB 2008-150180). The complainant claimed that her right to be treated equally without discrimination, exclusion or preference based on her religion had been infringed upon because her employer had refused to allow her two days of unpaid leave during the Holiday of the Jewish New Year. The main issue in question concerned the employer's duty to respect the obligation of reasonable accommodation.

The complainant, of Romanian descent, is a person of the Jewish faith. At the time the events occurred, she was a teacher at a day-care centre operated by the defendant. At a staff meeting near the end of August, 2004, the complainant asked the day-care centre's director for an unpaid leave of two consecutive days on September 16 and 17 to celebrate "Rosh Hashanah", the Jewish New Year. In the first two days of this 10-day holiday she is forbidden to work, to turn electricity on or off or to drive a vehicle. Throughout her life the complainant had never worked during the first two days of this holiday. When the complainant made her request, another day-care teacher also expressed a desire to have an unpaid leave of absence at the same time and for the same reason. On September 4 2004, the director of the day-care centre advised the two teachers that she could not grant their request for two days unpaid leave because both were teaching the same age group, both had asked for leave for the same days, and not enough substitute teachers were available. However the director advised them that each could have one day of unpaid leave as per their choice. After the complainant made a second attempt to convince the day-care director, the director indicated that she could not accommodate the complainant's request for two days and that the other teacher had already chosen September 16th as a holiday.

According to the Court, the employer did not ascertain if there were other ways to accommodate the complainant's request, such as reorganizing work schedules or assigning the groups of children differently. These solutions had not been seriously analysed and had been set aside without much consideration. The court also declared that the employer had not proved that the complainant's absence for one day was an undue hardship. Although the employee must contribute to the attempt to find a reasonable accommodation, the compromise must be initiated by the employer as it is the employer's obligation to offer a real and acceptable compromise. The Court decided that the defendant failed in her obligation to provide a reasonable accommodation and that she had adversely affected the complainant's right as an employee to be treated without discrimination based on religion.