On Dec. 10, 2015, the Ontario Human Rights Commission (OHRC) announced sweeping changes to the policy on creed in an updated policy on preventing discrimination based on creed. This is the first time the policy has been updated by the OHRC since 1996.
The policy sets out a review of the historical roots of discrimination based on creed in Canada, a new section on indigenous creed practices, a plethora of examples of expressions of creed and how to accommodate them and, most significantly, an expanded definition of creed.
Employers and employment lawyers alike should take heed of the new policy, given the broadened definition of creed which creates a heightened sense of responsibility for employers along with greater exposure to liability.
Section 1 of the Ontario Human Rights Code offers protection from discrimination based on creed in five social areas including employment, contracts, unions and professional associations (such as the Registered Nurses’ Association of Ontario).
Almost two-thirds (64 per cent) of people said they had experienced discrimination based on creed, according to a 2013 survey of 1,719 people by the OHRC.
The survey also found most creed-based discrimination reports take place in employment settings.
What is creed? Surprisingly, the code does not define the term. The general understanding of creed has, over time, largely been shaped by court and tribunal interpretations of the term.
With the new policy, the definition of creed has been expanded and includes religion, “broadly defined,” and other non-religious belief systems that have some significant influence on a person’s identity, worldview and way of life.
The policy says “given the evolving nature of belief systems over time and the need to apply a liberal and purposive interpretation to code protections for creed, this policy does not provide a universal, ‘once and for all’ definition of creed.”
The policy provides that newer religions or creeds may be included on a case-by-case basis. For example, in Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications (2010), a labour arbitrator found that an employer should have accommodated its employee, an editor of a TV news station, who followed the Rocky Mountain Mystery School belief system by allowing time off to attend a pilgrimage.
The pilgrimage was set to take place outside of the employee’s vacation time. The arbitrator found the work obligation was a substantial infringement on her religious freedom.
This may appear to be a case of extremes, but it isn’t. The code provides that a person’s creed belief needs only to be sincerely held. The focus is on a person’s subjective and personal understanding of his creed.
Beliefs need not be essential or even obligatory. Individuals are not even required to practise their creed in the same manner recognized by others belonging to the same creed.
Under the policy, every individual is entitled to express his creed in a way that is meaningful to him.
Questioning sincerity of belief
Employers should take note the policy cautions against asking about a person’s sincerity of belief. This practice should be “as limited as possible” and only where there is a legitimate reason to doubt it.
“The main goal of the policy is to avoid having to actually go to formal dispute resolution but rather allowing a lens for both employers and employees to understand their rights and obligations,” said Renu Mandhane, Ontario human rights commissioner.
“One of the clearest statements in the policy is that employers should take requests for accommodations based on creed at face value unless there is good reason to believe that the request is being made in bad faith. Employers are expected to accommodate bona fide, creed-related needs to the point of undue hardship.
“This new policy is likely a more inclusive interpretation of creed. The fact that it is more inclusive doesn’t make it unworkable to apply.”
The policy also emphasizes the fact that even if other legitimate factors exist, creed need only be a factor in someone’s differential treatment under the code. In Smith v. Network Technical Services Inc., for example, the employer dismissed an employee who declined to work Sundays due to his observance of the Christian Sabbath.
The employer gave evidence that he fired the applicant because he had been “written up” four times in four months, and he was disrespectful and confrontational in his meeting with him. The employer agreed, however, that the applicant’s refusal to work Sundays was also a reason for the employee’s termination.
The tribunal found that the employer breached the code.
The legal framework
For prima facie (on its face) discrimination on the basis of creed to be established, a person must show:
• he has a characteristic protected from discrimination under the code (creed)
• he has experienced negative treatment or an adverse impact within a social area protected by the code
• the protected characteristic was a factor in the negative treatment or adverse impact.
Using Smith as an example, Smith’s creed was protected under the code. He was terminated at his place of employment (a protected social area) and his observing the Christian Sabbath was a factor in him experiencing negative treatment (termination of employment).
Once the prima facie case of discrimination is established, the onus to provide a non-discriminatory explanation to justify the conduct then rests with the employer.
On this point, the policy also contains certain limitations and defences for employers. A duty to accommodate creed beliefs may be limited where the accommodation will cause undue hardship for an organization (such as exorbitant costs or health and safety concerns).
In the case of Smith, however, no undue hardship to the employer was found.
In a province growing in diversity, the expectation of true inclusion is no longer the exception. The policy gives employers tools to set up protocols to meet their human rights obligations.
It can be used as a “rule book” as it provides many practical scenarios to everyday situations that employers face.
That said, the policy is an indication of the expanding role human rights law has taken in the litigation of employment disputes where discrimination exists. Recent cases such as O.P.T. v. Presteve Foods Ltd. are damning examples of an employer’s flagrant breach of the code and the size of human rights damages an employer can face where breaches of the code are particularly egregious.
Tips for employers
Mandhane had the following tips for employers that strive to ensure they are in compliance with the new policy and code:
• Create a culture of human rights in the workplace. Have a conversation. Have clear codes of conduct and policies around human rights. Be proactive. Don’t get into a situation where employees don’t feel you’re open to speaking about issues they have. Create a welcoming culture. Often that is really important — many complaints can be avoided if employees feel they can come forward.
• Understand your obligations under the code. The OHRC has created e-learning materials. Have managers take part in that training.
• Address any potential issues proactively. If you hear an employee may be upset, ask him if he needs an accommodation. Create a culture where people don’t feel like they have to wait until after they leave employment to raise issues.
For more information see:
• Global Communications Ltd. V. C.E.P., Local 722-M, 2010 CarswellOnt 8884 (Ont. Arb.).
• Smith v. Network Technical Services Inc. 2013 HRTO 1880 (Ont. Human Rights Trib.).
• T. (O.P.) v. Presteve Foods Ltd., 2015 CarswellOnt 12338 (Ont. Human Rights Trib.).
Sunira Chaudhri is a partner at Levitt and Grosman in Toronto, practising labour and employment law. She can be reached at (416) 597-3373 or firstname.lastname@example.org.
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