Selective enforcement of hard hat rule on construction site was discriminatory: Tribunal
A Sikh security guard was the victim of discrimination when he was told to leave his post at a construction site for not wearing a hard hat instead of his turban, the Ontario Human Rights Tribunal has ruled.
Deepinder Loomba, 51, was a security guard for Reilly’s Security Services in the Toronto area. On Dec. 6, 2005, Loomba and another guard were assigned to a Home Depot store that was under construction in Milton, Ont., for a 12-hour shift. The guards were to staff a security access desk inside the building’s vestibule near the cashier stations. Workers, contractors and other visitors to the site would enter the building through a set of large lumber doors and come to the access desk before entering the rest of the store. The guards were to ensure anyone entering the store was wearing hard hats and safety shoes. If not, there were boxes of hard hats and toe protectors beside the desk to give to anyone who needed them. The guards were also expected to conduct regular patrols of the construction site. In addition to the hard hats and toe protectors at the desk, there was a sign inside the store indicating rules on the site required the wearing of such protective equipment.
Manager ordered hard hat over turban
Early on in the shift, Brian Busch, an assistant store manager, came over to the security desk and told Loomba he needed to remove his turban and put on a hard hat to comply with the safety rules. As a Sikh, Loomba had worn a turban his entire life and did not believe in removing it in public. He had never been required to wear a hard hat at previous construction sites where he worked and he didn’t see the necessity of doing so at the security desk away from the main construction area.
Loomba was also confused over Busch’s insistence because some workers entering the site weren’t wearing their hats or picked them up at the desk, not putting them on until they moved further into the site. Busch himself had taken off his hard hat when he came to the desk.
However, Busch was adamant the guards had to wear hard hats. The other guard put one on and Loomba held one over his turban, but the manager said it wasn’t secure enough. He claimed he asked Loomba if he had any other headdress that would accommodate the hard hat, but Loomba said he couldn’t wear anything other than the turban. Getting irritated, Busch asked to speak to Loomba’s supervisor and the two men went to an office where Loomba called his supervisor. Busch argued with the Reilly supervisor over why he would send someone who couldn’t wear a hard hat and the supervisor told Loomba to stay on duty, looking after exterior patrol and only staff the desk if the other guard was absent.
Soon after, Busch went over to a group of four workers near the access desk while Loomba was alone at the desk. After some discussion, the workers looked towards Loomba and began laughing and talking. One of the workers wasn’t wearing a hard hat. Then Busch came up to Loomba and asked him why he was still in the store. Loomba replied that he was waiting for the other guard to return and finishing a report. He also pointed out several workers who weren’t wearing hard hats and told Busch he thought the assistant manager was prejudiced and discriminating against him. Busch grew angry and told Loomba to get out of the store.
Loomba went outside and stood near the vestibule doors, since his supervisor had told him to stay on duty. Busch came out and told him he wasn’t allowed to stand there, so Loomba sat in his car. Busch then came out to the car and told Loomba he would only be allowed to work if he agreed to remove “it” and gestured at the turban. According to Loomba, Busch also said others had been fired for the same reason. Busch denied saying “fired,” insisting he suggested they could be “fined” for safety violations.
Throughout the dispute, Loomba felt Busch was being offensive and disrespectful towards him and he view this last remark as a taunt. He called Reilly management, explained what had happened and prepared a report. He also spoke to Home Depot’s corporate head office and was assured there would be an investigation, but there was no further communication.
Loomba experienced anxiety and sleeplessness from the incident and was confused over seeing such discrimination in Canada. He filed a human rights complaint, claiming Busch and Home Depot discriminated against him based on his religion.
Though Busch had worked with Sikhs in construction sites who had worn different headdresses to accommodate hard hats, the tribunal found there are differences between Sikh beliefs. While some might feel it was permissible to change what they’re wearing, the tribunal felt Busch sincerely believed in wearing the turban all the time as part of his faith.
Inconsistent enforcement of hard hat rule led to differential treatment
The tribunal also found Home Depot had a legitimate requirement that everyone at the construction site must wear protective headgear at all times, which were necessary under health and safety legislation. However, it was evident this requirement was not consistently enforced. Loomba saw several workers enter the building while not wearing hats, including Busch at times. The presence of the boxes of hard hats indoors made it likely there were workers on the exterior of the site who may not be wearing them. The normal practice, said the tribunal, was for people to don hard hats as they came to the access desk before proceeding into the interior of the building.
Given the lax enforcement of the hard hat rule, Busch’s insistence that Loomba wear one was differential treatment, said the tribunal. Even when Loomba went outside, Busch followed him and continued to tell him he needed to take off his turban and put on a hard hat.
“There was effectively a situation of non-enforcement or inconsistent enforcement of the protective safety equipment rule both at the building entrance and around the grounds,” said the tribunal. “Despite this lax approach for this area, (Busch and Home Depot) adopted a more stringent stance with (Loomba).”
The tribunal didn’t find evidence the group of workers were mocking Loomba as his perception may have been coloured by his anger at that point, but Busch following him outside and taunting him was derogatory and discriminatory treatment.
The tribunal ruled Loomba was subjected to differential treatment because he wore a turban, which was linked to his religious beliefs. This qualified as discrimination because of creed with respect to employment under the Ontario Human Rights Code. A second hearing was ordered to allow Home Depot an opportunity to provide evidence the hard hat rule was a reasonable requirement or whether it had satisfied the duty to accommodate.
For more information see:
•Deepinder Loomba v. Home Depot Canada (June 29, 2010), 2010 HRTO 1434 (Ont. Human Rights Trib.).