The issue would fall under human rights legislation, which, in Ontario, is the Human Rights Code (the “Code”). The Code prohibits discrimination based on a number of protected characteristics, including religion (“creed”), in a number of social areas, including employment. Would the Code protect employees from this type of policy?
The Code would certainly come into play if the employer’s rule deliberately targeted employees based on their religion. But let’s assume that isn’t the case. Let’s assume the employer’s motivation is not anti-religion, but just to impose a reasonable dress code, to ensure that its staff have a professional appearance and portray the desired image to their customers. Under this dress code, all sorts of head coverings and jewelry are prohibited, not just religious ones. What would happen then?
Interference with a Sincere Religious Belief
The employer’s rule might still be discriminatory if it negatively affects somebody in a way that is linked to his or her religious beliefs. So the first question to ask is whether the individual employee has a sincere religious belief that he or she must wear the religious symbol. Many Christians, for example, wear a crucifix not because they believe their religion requires them to do so, but just because it is meaningful to them to express that part of their identity. The Code would probably not protect those people.
That said, it’s important to bear in mind that the question of a sincere religious belief is subjective. It doesn’t depend on what a priest, rabbi or imam says the religion requires, but on what the individual believes.
The next question we would ask is whether the rule actually interferes with the person’s religious beliefs. The Ontario Divisional Court found in a 2011 case that an employer had not discriminated against a Muslim woman when it ordered her not to wear a particular hijab, which in the employer’s view looked unprofessional. The reason was that the employer had allowed her to wear other styles of hijab, and – the key point – those other hijabs were religiously acceptable to the employee. As a result, the employer’s rules still allowed the employee to practice her religion in a way that conformed with her sincere beliefs.
Similarly, an employer could probably require Jewish employees to wear small black yarmulkes (skullcaps) instead of more “ostentatious” ones – but only if the small black ones were acceptable according to the sincere religious beliefs of the individual employees.
The Duty to Accommodate
In our hypothetical, however, the employer’s dress code prohibits all sorts of head coverings and jewelry. Chances are that this type of rule would interfere with some employees’ religious beliefs.
Even so, that isn’t the end of the story. Even if the dress code is discriminatory, the employer can try to justify it as a “bona fide occupational requirement” – a rule that is truly required as an essential part of the employee’s job. The question to be asked is whether the employee’s religious beliefs can be accommodated without causing “undue hardship.” If so, the employer must modify the rule to accommodate the employee’s needs. If not, then the rule is allowed to stand.
What would constitute undue hardship when it comes to religious symbols? A couple of cases are illustrative. In one, an employer forbade a Sikh man from working because he was unable to wear a hard hat over his turban. A labour arbitrator upheld the employer’s decision, noting that the employer’s safety rule requiring hard hats was legitimate and necessary. In another case, a Sikh man was unable to wear a protective face mask, because it did not seal properly over the beard which his religion prevented him from shaving. Again, the employer was not required to excuse the employee from the safety rule, but it did have to try to find him a position that did not require the mask.
These cases show that interfering with worker safety is likely to be undue hardship. The Code will generally not excuse an employee from a workplace rule, even a discriminatory rule, where safety is at stake. But safety requirements are the only circumstances I have found in which an employer has successfully justified a rule that interferes with religious dress. While it is possible that other concerns could rise to the level of undue hardship, they would have to be just as compelling as physical safety. It is unlikely, for example, that a mere desire to make some customers feel more comfortable would make the cut.
Which is as it should be. The entire point of Canadian diversity and respect for human rights is that a person’s cherished beliefs, the things that make up his or her identity, should not be sacrificed merely because they may cause some discomfort.
Our hypothetical employer should keep that in mind.
And One More Thing
On the other hand, if wearing religious symbols in the workplace were contrary to law, an employer could almost certainly forbid its employees from doing so.
Suppose, for instance, that a provincial government were to pass a law forbidding certain employees from wearing religious symbols. Any employer covered by the law would probably be justified in enforcing that rule on its own employees. Even though the rule is discriminatory, it would cause undue hardship for the employer if it altered the rule and allowed religious symbols to be worn, because that would require the employer to break the law.
As a result, affected employees would not have much recourse under human rights legislation. They would have to challenge the underlying law itself, under the Canadian Charter of Rights and Freedoms.
But there’s no point even getting into that, because no provincial government would ever consider passing that kind of a law.
. . . I mean, they wouldn’t, right?
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