$36,000 discrimination award overturned (Legal view)

Tribunal’s finding of discrimination against Muslim employee ‘flawed’: Court
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 02/25/2011

An Ontario court has overturned a $36,000 arbitration award for discrimination, ruling there was no logical or legal basis for a finding of discrimination.

Seema Saadi was hired as an intake settlement worker by Audmax, a Mississauga, Ont.-based company that administers programs to help ethnic and religious segments of the population. Saadi, who is of Bengali descent and a Muslim, worked with immigrants who required assistance settling in and adapting to life in Canada. She began working at Audmax on April 21, 2008.

Employee felt targeted by employer’s policies

Soon after Saadi started at Audmax, it adopted a new policy that banned French in the office, apparently to avoid mistaken impressions, and prohibited the heating of certain foods in the office microwave because of food allergies and odours.

Saadi felt the microwave policy discriminated against her place of origin and ethnic background because her culture featured spicy food and the language policy targeted her because she spoke French, even though that wasn’t her primary language.

Maxcine Telfer, Audmax’s CEO, also reprimanded Saadi on her clothing, saying the company dress code required her to wear professional office attire and her long, loose robes and hijab, or head covering, did not conform. Telfer usually was fine with Saadi wearing a regular hijab but had issues with a new hijab, calling it a “cap,” that Saadi felt was more professional looking.

Saadi believed she was being targeted with a pattern of discriminatory treatment because she was a Muslim woman. This escalated in May 2008 when two other Muslim women resigned and Saadi felt she was next on the list. On May 16, she was called into a meeting about dress code violations and felt she was being watched thereafter.

Audmax admitted it was watching Saadi with added scrutiny but said it was because she started acting suspiciously around the office after the resignations. It said she refused to comply with the microwave and dress code policies, and it was concerned with her trustworthiness and professionalism.

On May 27, 2008, Saadi was called into another disciplinary meeting about her computer use, microwave use, the dress code, her handling of files and her ethics. Telfer told her she needed to improve and she was still on probation. However, on June 3, Telfer decided she had seen enough and terminated Saadi for cause, saying she was “not an organizational fit.”

In October 2009, the Ontario Human Rights Tribunal found the language policy and Audmax’s monitoring of her were not discriminatory, but its microwave and dress code policies were. Though the microwave policy didn’t deliberately target Saadi or her traditional food, it didn’t specify what food was or wasn’t allowed. Telfer’s singling out of Saadi for violating the policy was a discriminatory enforcement of the policy, said the tribunal.

Though Audmax’s dress code policy required neutral business attire such as blazers, blouses and skirts, it discriminated against Saadi because it had an adverse effect on her religious beliefs regarding modest clothing and head coverings. The clothing outlined in the dress code was not essential for the job, found the tribunal, particularly the banning of the different style hijab Saadi was told not to wear.

Audmax appealed the tribunal’s decision and the accompanying award of $36,000 for discrimination and loss of wages, claiming the procedure was unfair. The employer was particularly displeased the tribunal didn’t allow written evidence from an Audmax employee who couldn’t make it to the hearing.

Tribunal’s decision short on analysis: Court

The Ontario Divisional Court allowed the appeal, finding “a number of deficiencies” in the tribunal’s decision. The witness who was disallowed had helped create the microwave policy and advised on the dress code, found the court. In refusing the written evidence from this witness, the tribunal failed to advise Audmax and Telfer, who represented themselves, of their right to request a delay in the hearing until the witness was available.

This compromised the “overall fairness of the hearing,” said the court in its January 2011 decision, and the absence of this witness led to an adverse inference in determining Saadi’s dismissal was discriminatory.

As for the microwave policy, while other workers stopped using it completely when the policy came into effect, Saadi continued to use it, noted the court. Therefore, it could not be seen to have an adverse effect on her compared to her co-workers. In addition, there was no finding by the tribunal regarding what foods Saadi was criticized for putting in the microwave and, therefore, it could not be found to be related to her ethnicity. The tribunal said the microwave policy was ambiguous and arbitrary, which made the finding it discriminated against Saadi because of her ethnicity a “bald conclusion that is unsupported by any factual findings,” said the court.

The dress code was not discriminatory, found the court. The policy’s requirement for business attire and no casual shoes or jeans did not conflict with Saadi’s religious requirements to dress modestly. Though the tribunal said the dress code was arbitrarily applied, this conflicted with its earlier finding the policy was clear and well-known to staff. Also, though Telfer took issue with a certain style of hijab worn by Saadi, there was no evidence Saadi could not wear a more traditional type of hijab. The tribunal also didn’t consider the Meiorin test for discrimination and bona fide occupational requirements, nor any other legal reasoning with regard to the dress code, found the court.

“The fact the employer had no problem accommodating different kinds of headdress in the past suggests to me that what was at issue here was a question of style and taste, not religious accommodation,” said the court.

The court overturned the finding of discrimination and the $36,000 award and ordered Saadi to pay $10,000 for costs to Audmax and Telfer. It also remitted the case back to the tribunal for a new hearing.

For more information see:

Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 (Ont. S.C.J. (Div. Ct.)).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, see www.employmentlawtoday.com.

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