Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2014 CANADIAN LABOUR REPORTER "Equal treatment under the law, regardless of gender, race or religion is a fundamental Canadian value," said CBSA spokesperson Pa- trizia Giolti. "While CBSA will take reasonable steps to accommodate travelers when appro- priate, we will not compromise the rights of Canadians." But the Customs and Immigration Union (CIU) and the Public Service Alliance of Can- ada (PSAC) had a different take. "We believe the employer has a responsibil- ity to balance religious accommodation and workers' and women's rights while keeping in mind we're providing the front line of defense to Canada," said CIU's first national vice presi- dent Jason McMichael. "One does not supersede the other and when there's a conflict, it's up to the employer to find a solution that doesn't trample on either right and respects the law, the workers and the clients. The removal of the female employees didn't do that. The CBSA got this one wrong." McMichael said the union plans to work with the employer moving forward in an effort to help the CBSA learn from this misstep. "Open communication with the union members on developing best practices is key," he said. "Trampling on the rights of women in order to accommodate a religious request certainly isn't the answer and in fact makes an already sensitive issue much worse. Our mem- bers have a wealth of knowledge that is far too often overlooked by the employer when these issues come up." PSAC agreed the CBSA needs to work dili- gently to repair any damage done to its rela- tionship with employees. A statement from the union said the CBSA's decision under- mined workers' ability to do their job and dem- onstrated an irresponsible and disrespectful attitude towards employees. "As a woman and a federal public servant I find this not only objectionable but offensive," said Robyn Benson, national president of the PSAC. "CBSA has an obligation to treat all of its employees equally." PSAC is consulting legal counsel to ensure the CBSA is prevented from taking similar measures again. Daniel Chodos, an employment lawyer with Toronto-based firm Whitten & Lublin, said the situation is much more complicated than it might appear on the surface. "We don't have all the facts right now," he said. "We're primarily hearing one side of the story." In order to make a better judgment, Chodos said it was necessary to learn what exactly the CBSA knew about the priests' religion. Know- ing what, if any, research went into the deci- sion to accommodate the request could affect the argument. The way in which employees were informed of the decision to accommo- date — and the details of the accommodation itself — is also crucial. "A lot of these cases come down to dignity and respect for people. If it was a disrespect- ful or undignified manner in which the female employees were treated, I think they'd have a much better human rights case than if CBSA did everything in its power to minimize the impact on them," Chodos said. Section 5 of the Canadian Human Rights Act deals with the provision of goods, services, facilities or accommodations available to the general public. Chodos pointed out the act doesn't reference Canadian citizens or even Canadian residents, but the general public, which he believes covers visitors to the coun- try. The act states it is impermissible to deny access to any such goods, services, facilities or accommodations or to treat someone differ- entially on the basis of a prohibited ground — one of which is religion. Simultaneously, Section 7 of the Canadian Human Rights Act states it is a discriminatory practice to refuse to employ, continue to em- ploy or to differentiate adversely in relation to an employee based on a prohibited ground — including sex. "As a general concept the Supreme Court of Canada has been very clear that once either of these obligations is engaged, an employer has an obligation to accommodate someone to the point of undue hardship," Chodos said. Undue hardship must be assessed on a case- by-case basis and cannot be considered in a vacuum, or without all of the necessary infor- mation. Part of the analysis in accommodation to the point of undue hardship, he said, would be the potential impact on another person's human rights. "In my view, as long as CBSA did every- thing in its power to minimize any adverse impact on its employees in accommodating the group, the employees would likely have an uphill battle to establish discriminatory treat- ment on the balance of probabilities." Chodos recommended employers consult with legal counsel specializing in this area of law before making an accommodation when- ever possible. While each case needs to be considered in its own context, he said it is not unreasonable for an employer to ask for infor- mation and seek evidence when an accommo- dation is requested. "Based on the comments I'm seeing, I think there's a bit of a simplistic view that's being tak- en by a lot of people, which is understandable, but this is a complex situation," Chodos said. "That's why we have to learn more before we really draw these conclusions." news Photo: Christinne Muschi (Reuters) Employment lawyer Daniel Chodos said the details of the accommodation could affect a union's attempt to establish discriminatory treatment against employees on the balance of probabilities. "A lot of these cases come down to dignity and respect for people," he said. CIU, PSAC speak out against accommodation < from pg. 1

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