Human Rights Tribunal: You Can’t Make Someone Observe the Sabbath

Written on behalf of Peter McSherry
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Cases involving human rights in the workplace often revolve around an employer imposing a condition on someone. But what about instances where an employer prevents someone from working? The Quebec Human Rights Tribunal addressed this recently in Commission on Human Rights and Youth Rights (Zilberg) v. 9220-3454 Québec Inc. (Spa Liv Zen (Spa Orazen)).

Imposing The Observance Of The Sabbath

The employee in question worked as a hairstylist in a Montreal spa from 2011 to 2012. The employee, who was Jewish, worked for about 30 hours per week, including Saturdays. In the Spring of 2012, the employer, who is also Jewish, suggested he no longer work Saturdays in order to conform with the Jewish Sabbath.

In July 2012, the employee was told he was no longer allowed to work on Saturdays. In evidence provided to the Tribunal, he said the same restrictions were placed on another Jewish employee.

The employee claimed that he told some of his regular clients that the employer no longer allowed him to work on Saturdays. One of the clients, who was Jewish, complained to the employer, stating the policy was “mishegas”, a Yiddish word for “crazy.” The employer learned of the conversation and subsequently fired the employee for breach of confidentiality.

Were The Employee’s Human Rights Infringed Upon?

The employee submitted a case to the Quebec Human Rights Commission, arguing being refused work on a Saturday violates his rights to freedom of conscience and religion. He told press at a news conference, ““I come from a long line of Jewish people and I love my faith but it is 2015 and I can choose how I want to practise,”

The Commission determined there was sufficient evidence to warrant a hearing at the Quebec’s Tribunal for Human Rights.

In order to determine whether there had been discrimination, the Tribunal had to look at three conditions:

  1. Was there a distinction, exclusion, or preference?
  2. Was that distinction, exclusion, or preference based on a protected ground of Quebec’s Charter of Human Rights and Freedoms?
  3. Did the employee establish that the difference in treatment undermined the and exercise of his other rights and freedoms as guaranteed by the Charter (in this case,freedom of conscience and religion).

The Tribunal ruled that there was an exclusion in this case – the employee had been excluded from working on Saturdays. The second part of the test was satisfied because the exclusion affected the employee’s right to equality in employment based on his religion. Finally, the third condition was satisfied since not being able to work on Saturdays because he is Jewish “violates (the employee’s) rights to freedom of conscience and religion as well as to the safeguard of his dignity and respect for his private life.”

The employee was awarded both material damages for six months of work as well as damages for moral prejudice, amounting to a total of about $20,000. The Montreal Gazette reported that Tamara Thermitus, the Commissioner for Quebec’s Human Rights Tribunal said ““This (tribunal) judgment is a reminder that an employer cannot impose different working conditions on an employee on the basis of his or her religion… Freedom of conscience and religion, a fundamental freedom guaranteed by the Charter of Human Rights and Freedoms, includes the right not to be bound by religious observance, as emphasized in the judgment. It includes the right to believe and not to believe.”

Peter McSherry helps people who have been discriminated in the workplace. Contact Peter online or by phone at 519-821-5464 if you have faced harassment or discrimination at work. Peter has provided his clients with compassionate care, attentive service, and the efficient resolution of legal issues in the areas of human rights. We would be happy to provide you with an initial consultation.