Religious accommodation: Hertz terminates Muslim employees in dispute over prayer breaks

Hertz car rental company in the U.S. recently came under scrutiny when it terminated 26 Muslim employees in a dispute over prayer breaks. 

Hertz and the employees’ union had previously agreed that all Muslim employees would be permitted to pray in a designated prayer area, and that they would not be required to clock out during prayer breaks.  About 70 percent of Hertz’ drivers at its Seattle-Tacoma International Airport location are Muslim.  The drivers make less than $10 per hour and have no benefits. 

Recently, and without any warning to the union, Hertz began requiring that its employees clock out during prayer breaks.  Hertz imposed the new policy citing its concern that employees were taking longer than 10 minute breaks to conduct their prayer.  A number of workers were sent home for not following the new clock out rule, while many others were suspended and/or terminated. 

In Ontario, Hertz’ strict prayer break policy would likely be found to be a violation of the Ontario Human Rights Code, which provides for freedom from discrimination on the basis of creed.  Employers are required to accommodate religious observances, such as daily prayer, up to the point of undue hardship.  The Ontario Human Rights Commission has stated that religious accommodation could require that an employer adopt a flexible policy and/or approach to break times, as well as provide its employees with a designated prayer area.

Whether a requested religious accommodation amounts to undue hardship for an employer depends on a number of factors, including actual costs and health and safety risks, if any.  The undue hardship test takes into account the size of the organization and its operations, and the nature of the employer’s business and financial capabilities.  Importantly, customer preferences or those of co-workers are not valid considerations under the undue hardship test.  

It is likely that under Ontario law, a large employer such as Hertz would not be able to demonstrate that it had accommodated its employees’ prayer breaks up to the point of undue hardship.  Employees whose rights to religious accommodation have been violated have the right to seek damages and/or reinstatement in an application to the Human Rights Tribunal of Ontario.