Ontario’s new creed

Human rights legislation offers protection for workers from discrimination in the course of employment based on several specific grounds. Many of these grounds are fairly obvious, but one that is a little more vague is the ground of creed.

The Ontario Human Rights Commission has announced changes to its policy with regard to creed as a ground protected from discrimination — changes that offer a broader definition of the term and a better understanding of it. Employment lawyer Sunira Chaudhri fleshes out what these changes mean for employers and what they need to do to protect employee human rights with regards to creed.

If Sylvester Stallone’s critically acclaimed performance is the first thing you think of when you hear the word “creed,” read on!

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. The policy can be viewed online at http://www.ohrc.on.ca/sites/default/files/Policy%20on%20preventing%20discrimination%20based%20on%20creed_accessible_0.pdf. This is the first time the policy on creed 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, in turn, creates a heightened sense of responsibility for employers along with greater exposure to liability if ignored. 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, for example).

According to the OHRC’s “Summary of Human Rights and Creed survey findings” conducted in 2013, a majority of those surveyed (64 per cent) reported having experienced discrimination based on creed. The survey also found that most creed-based discrimination reports take place in employment settings.

What is creed? Surprisingly, the code does not define the term. Our general understanding of creed has, over time, largely been shaped by court and tribunal interpretations of the term. According to the new policy, the definition of creed has been expanded and includes religion, “broadly defined” and can include other non-religious belief systems that have some significant influence on a person’s identity, worldview and way of life. The policy states “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.”

Newer religions/creeds entitled to protection

The policy provides that newer religions or creeds may be included on a case-by-case basis. For example, in Global Communications Ltd. V. C.E.P., Local 722-M, a labour arbitrator found that an employer should have accommodated its employee, an editor of a television news station who followed the Rocky Mountain Mystery School belief system, by allowing time off to attend a pilgrimage to the Rocky Mountains. The pilgrimage was set to take place in Japan outside of the employee’s vacation time. The arbitrator found that 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 practice 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 an employee’s sincerity of belief

Employers should take note that 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.

Renu Mandhane, the Ontario Human Rights Commissioner, says: “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. 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 needs to be only a factor in someone’s differential treatment under the code. In Smith v. Network Technical Services Inc., an 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 also was 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 like in O.P.T. v. Presteve Foods Ltd., is damning example of an employer’s flagrant breach of the code and the size of human rights damages that an employer can face where breaches of the code are particularly egregious.

Tips for employers

Mandhane, the Human Rights Commissioner, had the following tips to give employers that strive to ensure they are in compliance with the new policy and with the code:

• Employers should create a culture of human rights in their 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.

• Employers should understand their obligations under the code. The OHRC has created e-learning materials. Have your managers take part in that training. Deeply understand your obligations under the code.

• 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.).