Quick answer
Yes. A work rule that applies to everyone in the same words can still be discriminatory if it puts people with a protected characteristic, such as religion, at a particular disadvantage. This is called indirect discrimination (in Canada, "adverse effect discrimination"). In Central Okanagan School District No. 23 v. Renaud (1992), the Supreme Court of Canada held that an employer must take reasonable measures, short of undue hardship, to accommodate an employee's religious beliefs, and that a union which blocks a reasonable accommodation can share the liability.
Direct and indirect discrimination
| Point | Direct discrimination | Indirect (adverse effect) discrimination |
|---|---|---|
| Form of the rule | Openly treats a group differently on a prohibited ground | Neutral on its face, same for everyone |
| Where the harm lies | In the purpose and wording of the rule | In the effect of the rule on a particular group |
| Usual remedy (as explained in Renaud) | The discriminatory provision is invalid | The rule stays in general use, but the affected person is accommodated |
The case
Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 (Supreme Court of Canada, judgment of 24 September 1992, delivered by Sopinka J. for the Court). Larry Renaud, a Seventh-day Adventist, was a unionised school custodian. His shift under the collective agreement included Friday evening, but his religion did not allow him to work from sundown on Friday to sundown on Saturday. The only practical solution, a Sunday-to-Thursday shift, needed the union's consent. The union opposed it and threatened a grievance, and the school board finally dismissed him. The Court allowed his appeal and held both the employer and the union liable for religious discrimination under the British Columbia Human Rights Act.
Key points from Renaud
- Reasonable measures short of undue hardship: the word "undue" means some hardship must be accepted. More than a negligible effort is required, and the Court refused to adopt the United States "more than de minimis (trivial) cost" test.
- Contracts give way to human rights law: a collective agreement cannot be used to contract out of the duty to accommodate. The cost of defending a threatened grievance was not undue hardship.
- Union liability: a union becomes a party to discrimination if it helps make the discriminatory rule (for example, by agreeing to it in the collective agreement) or if it blocks the employer's reasonable efforts to accommodate.
- Limits: substantial interference with other employees' rights can be undue hardship; minor inconvenience is not.
- The employee's role: the search for accommodation is a multi-party inquiry. The employee must help make a reasonable proposal work, and if he turns down a reasonable proposal, the employer's duty is discharged.
Example
Armaan works at a factory where every worker must take a rotating late shift. One of those shifts falls during a genuine weekly religious obligation, and he asks to swap it. Under the Renaud approach, the employer cannot simply say "the rule is the same for everyone". It must look for a reasonable adjustment, such as a shift swap, unless that would cause undue hardship, such as a real safety risk. If the employer offers a reasonable alternative shift, Armaan is expected to cooperate with it.
Note for Indian students
Renaud was decided under a Canadian provincial statute. It is not binding in India and does not state Indian employment law, but it is a leading comparative authority on the duty to accommodate.
Exam point
Renaud (Supreme Court of Canada, 1992): a neutral rule with a discriminatory effect requires reasonable accommodation short of undue hardship, and a union that blocks reasonable accommodation shares liability with the employer.
