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December 14, 2015

Can Bosses Ban “Merry Christmas”?


8242060994_5af6a2900d_zGuest Post by Emily Burke

In recent years, during the weeks leading up to Christmas, the same great debate has resurfaced: Should we be wishing each other a merry Christmas, or in the interest of political correctness, should seasonal greetings be limited to “happy holidays”?

This year the spotlight is on Starbucks’ seasonal cups, which no longer feature illustrations of Christmas ornaments, reindeer and other cheerful wintery imagery. Though the cups are still bright red, the specific allusions to the Christmas season have been removed—this change in branding was enough to enrage many members of the public.

One objection came from Joshua Feuerstein, who calls himself “an American Evangelist, Internet, and social media personality”, when he responded to the controversial coffee cups with a video saying this is a clear sign that Starbucks “hates Jesus.” (The video has over 16 million views on Facebook).

Feuerstein also speculates that Starbucks employees are forbidden from saying merry Christmas, but a company spokesperson released a statement to The Atlantic denying that claim.

But let’s say an employer did ban its staff from greeting customers with Christmas wishes, and insisted instead they opt for a more secularized phrasing. Is it within their right as an employer to make that demand or could this potentially be a violation of a staff member’s right to religious expression?

“Employers have a broad right to direct their employees, and that’s the starting point,” says Millard & Company associate Marcus McCann. “There are limits on that right, of course. For example, an employee has a right to refuse unsafe work. That’s a limit. The Human Rights Code provides a limit as well, and if the employee had a claim, it would likely be under the Code.”

But there would be obstacles to any claim made under the code, McCann says. In an earlier blog post on this site, we noted that in the case Clipperton-Boyer v RedFlagDeals.com, 2014 HRTO 1796, the Human Rights Tribunal only accepted religious claims which fall into three categories.

The HRT found that the claimant must prove:

“There may be a narrow window for an evangelical Christian who claimed that proselytizing was a core part of her religious belief. It wasn’t strenuously argued in Clipperton-Boyer,” says McCann. “I haven’t had any cases land on my desk in which an employee was required to say ‘happy holidays’, but if the evangelical employee were my client, that’s what I’d be arguing.”

Although it would likely be a challenge to prove that saying “Merry Christmas” to customers is a core element of an employee’s religious beliefs, if this could be established then the employer would have a duty to accommodate that practice, up to the point of undue hardship.

In practice, what should an employee do if she is fighting to keep merry Christmas in her work vocabulary? Likewise, what should an employer do if the C-word is causing problems?

“With issues like this, both sides can become entrenched. The merry Christmas versus happy holidays divide is probably exaggerated. But knowing that both sides are usually trying to do the right thing and be respectful can make a big difference. Compromise and negotiation are usually better than a stand-off. If there is a way to accommodate a religious employee, whether or not it’s strictly required by the Code, it’s probably a good idea.”

“Context is important. We’re talking about employment. Obviously people are free to wish each other merry Christmas. Even if Starbucks employees were required not to use the phrase, certainly Starbucks customers are free to, and so would the baristas after the end of their shifts.”

*

Note: The question examined in this post relates specifically to employees who are dealing directly with customers or members of the public and are employed by a private company, such as a barista at Starbucks. However, protections are different for government employees because government employers are bound by the Charter. Similarly, for unionized employees, their employers are bound by collective agreements.

Millard & Company specializes in employment and human rights law and has represented both applicants and respondents in many cases before the Ontario Human Rights Tribunal.

Photo by Dvidshub used under cc license

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