Adverse Affect Discrimination:

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When Saturday is the Sabbath: Adverse

Affect Discrimination
Kingston, Ontario
October 20,1978

When it comes to retail, Thursday, Friday, and Saturday are the three most important days
of the week.

That's why stores like Simpsons Sears required full time sales clerks, like Theresa
O'Malley, to work two out of three Saturdays. Theresa happily worked Saturdays at
Simpson Sears for 7 years until she became a member of the Seventh-Day Adventist
Church. As a Seventh-Day Adventist, she had to observe the day of Sabbath (no work)
from sundown Friday to sundown Saturday. That meant no more weekend shifts at the
store it also meant that she would lose her full time position to become a part time
employee.

Theresa O'Malley complained to the Ontario Human Rights Commission that she had
been discriminated against because of her religious beliefs. She asked to receive the
difference between her full time salary and her part timepay until July 6, 1979, the date
she had planned to marry and quit her job.

Her demands would be met. The case would take 7 years to complete and attract some
serious interest as the Supreme Court of Canada would recognize what it called "adverse
affect" discrimination.
Supreme Court of Canada Building
December 17, 1985

7 justices agreed that an employment rule - even one made

honestly and for sensible business reasons - can still be
discriminatory.

In other words, the Supreme Court decreed that discrimination by

accident, "adverse discrimination," is just as wrong as intentional discrimination. Since
Theresa O'Malley is a Seventh-Day Adventist and wishes to keep her Sabbath, the rule
that requires her to work on Saturdays has an unintentional "adverse affect" on her. The
necessity or intention of the rule doesn't prevent it from being discriminatory. The court
would establish the following rules:

1. When adverse affect discrimination exists, an employer has a duty to take

reasonable steps to accommodate an employee who has been affected
short of undue hardship in the operation of the business.
2. If these reasonable steps don't solve the problem, then the employer can't
be expected to do anything more. The person affected has to choose
between either his or her religious principles or his or her employment.
3. The person complaining must show that he or she is experiencing
discrimination because of a rule. If he or she does, then the employer
must show that it has taken reasonable steps to accommodate the
employee without suffering undue hardship.

In this case, the Supreme Court decided that Simpsons Sears had not taken reasonable
steps to try to accommodate Theresa O'Malley. It could have shuffled her work schedule
without causing a problem, but it hadn't. The company had simply offered Theresa part
time work.

The court decided that this was "adverse affect discrimination" in action, and Theresa
O'Malley was awarded her full time paycheck.

Bhinder v. CNR

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Reconciling Religious Beliefs with
Occupational Standards
CNR Coach Yards
Toronto, Ontario
December 5, 1978

Mr. Bhinder, a Sikh, had worked for the Canadian National Railway Company (CNR) for
more than four years. He worked the night shift as a maintenance electrician in the
Toronto coach yard, servicing the turbotrain. Everything was fine until CNR announced
that, for safety purposes, all its yard employees would have to wear a hard hat. As a Sikh,
Mr. Bhinder was forbidden by his religion to wear anything on his head except a turban.
He had little choice but to refuse to wear the hard hat. He was fired.

Mr. Bhinder filed a complaint with the Canadian Human Rights Commission arguing that
he has been discriminated against on the basis of his religious beliefs.

What do you think should happen? Should Mr. Bhinder's religious beliefs or CNR's
safety rule take precedence?

Supreme Court of Canada Building

Ottawa, Canada
December 17,1985

The question became: "Is CNR's hard hat rule a bonafide occupational
requirement (BFOR)?"

If it is, there can be no discrimination - not even "adverse affect

discrimination."

The majority of justices find that the hard hat rule is a BFOR - a rule made honestly in
good faith for objective, reasonable, work related grounds. Hard hats are a safety issue.
The rule about wearing them wasn't intended to discriminate against Mr. Bhinder.

Some argue that since the rule had an "adverse affect" on Mr. Bindher it should be
eliminated as discrimination.

The Supreme Court referred to s.14 of the Canadian Human Rights Act which said:
Section 14. It is not a discriminatory practice if (a) any refusal, exclusion, expulsion,
suspension, limitation, specification or preference in relation to any employment is
established by an employer to be based on a bona fide occupational requirement.

In other words, s.14(a) makes the requirement of the job prevail over the requirement of
the employee. The section says that a genuine job-related requirement - a BFOR - is not
discriminatory. No discrimination, nothing to accommodate.

In the end, Mr. Bhinder chose his religion over his job.

Adverse Affect Discrimination and Accommodation

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Adverse Affect Discrimination and

Accommodation
Wetaskiwin, Alberta
Easter Monday
April 4, 1983

Jim Christie was a lot like Theresa O'Malley: His religious beliefs, including membership
in the World Wide Church of God, prevented him from working on certain holy days
throughout the year. And, like Theresa O'Malley, Jim Christie suffered consequences as a
result of his religious beliefs.

In 1983, Jim worked for the Central Alberta Dairy Pool. In accordance with his religious
beliefs, Jim asked to take a day of unpaid leave on Easter Monday. He offered to work an
alternative day outside his regular schedule to make up for his absence. His boss - who
had accommodated him in the past - refused to give him Monday off as it was the busiest
day of the week. Undaunted, Jim didn't show up to work on Monday. He was fired on
Tuesday.
The story doesn't end there. Jim Christie alleged that by firing him because of his
religious beliefs, the Diary Pool had violated s. 7(1) of Alberta's Individual's Rights
Protection Act. The Dairy Pool responded by saying that their rule about working on
Mondays was a Bona Fide Occupational Requirement (BFOR) that applied to all
employees - regardless of their religion. The trial court and the Alberta Court of Appeal
both agreed with the Dairy Pool, but the Supreme Court of Canada would have the last
say.

Supreme Court of Canada Building

September 13, 1990

In short, the Supreme Court of Canada said "oops!" regarding "adverse affect"
discrimination.

In an earlier case, the Bhinder case, the court had ruled that once a rule is proven to be a
BFOR the company was automatically off the hook for discrimination. This case caused
the Supreme Court to change its position.

In this case,the judges agreed - 4 to 3 - that the Dairy Pool's rule was a BFOR. That
meant that the rule had been made honestly, in good faith, and for objectively reasonable,
work related reasons. It wasn't an attempt to discriminate against Jim Christie because of
his religion.The Dairy Pool was not guilty of discrimination.

But, it was guilty of "adverse affect discrimination."The Dairy Pool's rule had indirectly
infringed Christie's religious beliefs.The court believed that granting Jim's request would
not have caused the company any "undue hardship." In other words, the Pool's crime lay
in not trying hard enough to accommodate Jim Christie.

The Supreme Court's message was clear: Try your best to accommodate the beliefs of
others.

What is undue hardship?

The court doesn't define it exactly, but some of the factors that will be considered are...

 financial cost,
 disruption of a collective agreement
 morale problems of other employees
 interchangeability of work force and facilities.
 the size of the employer's operation
 safety issues

These factors will be balanced against the right of the employee to be free from
discrimination. Discrimination has to be determined on a case-by-case basis.
What about the Charter of Rights and Freedoms?

Don't forget, the charter only applies to government, not private industry. But human
rights codes like Alberta's Individual Rights Protection Act do apply to private businesses.
S. 7 of Alberta's Individual Rights Protection Act
7(1) No employer or person acting on behalf of an employer shall (a) refuse to employ or
refuse to continue to employ any person, or (b) discriminate against any person with
regard to employment or any term or condition of employment, because of the race,
religious beliefs, colour, sex, physical characteristics, marital status, age, ancestry or
place of origin of that person or of any other person.
(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or
preference based on a bona fide occupational qualification.