Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd. (1985) 

Mrs. O'Malley, now Vincent, was first employed in 1971 by the respondent, Simpsons-Sears, in Quebec City. After moving to Kingston she worked full-time as a saleswoman in the respondent's Kingston store from 1975 until October 1978. The ladies' wear department, where she was employed, was one of the major income producers. The store remained open for business on Thursday and Friday evenings and was open, of course, on Saturdays. This period from Thursday evening to Saturday evening was acknowledged by both the complainant and the respondent to be the busiest time of the week. It was described as "the time for selling". It was a condition of employment that full-time sales clerks employed by the respondent would work on Friday evenings, on a rotating basis, and on two Saturdays out of three.

In October of 1978 the complainant became a member of the Seventh-Day Adventist Church. A tenet of this faith is that the Sabbath must be strictly kept; its Sabbath extends from sundown Friday to sundown Saturday. As a result, the complainant could no longer, consistent with her new faith, work for her employer on Saturdays. In the proceedings which followed it was found by the Board of Inquiry appointed under the Ontario Human Rights Code, and indeed not questioned by the respondent, that the complainant's conversion was genuine, sincerely made, and in no way actuated by any desire to procure more favourable working conditions. Mrs. O'Malley, because of her conversion, found herself in a position where she could no longer fulfil her employment obligations without compromising her religious beliefs. It was also found, however, and again it was not disputed, that the policy of Saturday opening followed by the respondent was adopted for sound business reasons and not as the result of any intent to discriminate against the complainant, nor out of any malice towards the complainant or members of her faith. In fact, the evidence made it clear that until her conversion the complainant was in all respects a competent and valued employee. She, with other members of the staff, had accepted as a condition of employment the obligation to work on Saturdays when required by the employer's rotating schedule.

The complainant informed Mr. Burleigh, the personnel manager for the respondent, of her conversion and he informed her that she would be required to work her turn on Saturdays. The complainant did not want to resign but Burleigh informed her that Saturday work was a requirement and she would be discharged if she could not work on Saturdays. She wanted to continue her employment but could not continue on the required basis because of her newly-assumed obligation of Sabbath observance. On October 20, during what was to be the last week of her employment, Mr. Burleigh called her into his office and offered her part-time employment commencing the next week. She accepted this offer and then became a part-time employee. She worked about one-half the hours formerly required and suffered a consequent reduction in her earnings and fringe benefits. Mr. Burleigh also told her she would be considered for any jobs for which she might be suitable and which could accommodate her personal requirements.

On Friday, October 20, 1978 Mrs. Therese O'Malley was officially removed from full time status with Simpsons-Sears Kingston and subsequently re-hired on a contingent basis. This action was required as Mrs. O'Malley indicated she would no longer be available for work on Saturdays.

O'Malley alleged discrimination on the basis of creed against her employer, a retailer, because she was periodically required to work Friday evenings and Saturdays as a condition of her employment. Appellant's religion required strict observance of the Sabbath from sundown Friday to sundown Saturday. Given this conflict, appellant accepted part-time work because a full-time position not involving work on Saturday was not available to a person with her qualifications. Both the Divisional Court and the Court of Appeal upheld a Board of Inquiry's decision to dismiss the complaint. At issue was whether or not a work requirement imposed on all employees for business reasons discriminated against appellant because compliance required her to act contrary to her religious beliefs and did not so affect other members of the employed group.

The Supreme Court of Canada allows an appeal by the Ontario Human Rights Commission and Theresa O’Malley from the Ontario Court of Appeal ruling which found that O’Malley was not discriminated against because of her religion when her full-time employment was terminated because she refused to work Friday evenings and Saturdays. O’Malley’s religion (Seventh-Day Adventist) required strict observance of the Sabbath from sundown Friday to sundown Saturday.

The Supreme Court of Canada, in a unanimous judgment, finds that O’Malley was discriminated against because of creed.

The Court finds that it is not necessary to prove that discrimination was intentional to find that a violation of human rights legislation has occurred. An employment rule, neutral on its face and honestly made, can have discriminatory effects. It is the result or the effect of an act which is important in determining whether discrimination has occurred.

Where an employment rule has a discriminatory effect, the Court finds that an employer has a duty to take reasonable steps to accommodate the employee, unless accommodation creates an undue hardship for the employer. In O’Malley’s case the employment rule that all employees must work Friday evenings and Saturdays on a rotation basis had a discriminatory effect because of her religion. The employer did not show that accommodating O’Malley would have created an undue hardship.

The Court finds that the onus of proving that accommodation will result in undue hardship is on the employer since the information is in the employer’s possession and the employee is not likely to be able to prove that there is no undue hardship.

The appeal is allowed. Simpsons-Sears Limited is ordered to pay O’Malley compensation for wages lost due to discrimination.

• An employment rule, honestly made for sound economic and business reasons and equally applicable to all to whom it is intended to apply, may nevertheless be discriminatory if it affects a person or persons differently from others to whom it is intended to apply.
• In a case of adverse effect discrimination, the employer has a duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer's business.
• The complainant first must establish a prima facie case of discrimination.
  • The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship.