Employer policies that discriminate based on religion, sex, gender not likely to hold up to legal scrutiny
An elementary school teacher in Quebec was recently removed from her class because she wore a hijab to work.
This was in accordance with a controversial law in the province, but usually such a ban would lead to a human rights challenge, says Nicole Toye, an employment lawyer and partner at Harris & Company in Vancouver.
“If a policy is implemented in a way that negatively impacts employees who subscribe to particular religions, that’s likely to result in human rights complaints and financial liability for the company,” she says.
“There are obviously human rights issues anytime an employment policy is making a distinction based on a protected ground, and religion or creed is a protected ground under most, if not all, human rights legislation across the country.”
Quebec’s Bill 21 has come under a lot of scrutiny since it came into force in 2019. The provincial law bans certain public sector employees — such as teachers, lawyers, and police officers — from wearing religious symbols like crosses, hijabs, turbans, and yarmulkes while on the job.
The law has faced challenges from the likes of the Canadian Civil Liberties Association and other groups in Quebec and has resulted in disdain across the country.
In 2019, a Quebec teacher’s union announced it was suing the province over the religious symbols ban.
Such dress codes not only face legal liability under the charter or human rights legislation, but could present challenges for diversity, says Toye.
“Young people, they want to know what employers are doing to encourage diversity and inclusion in the workplace and I think this kind of policy is quite the opposite,” she says. “I can see that as having a detrimental impact on people’s interests in working for that kind of employer, and wanting to continue to be employed in that sort of workplace that is willing to outwardly make those kinds of distinctions.”
While Bill 21 is an example of an overt policy where the employer — the Quebec provincial government — has implemented a dress code that negatively affects a certain group of people, it’s more common for dress code discrimination to be subtle and less obvious, she says. In most cases, it happens when such a requirement has no relationship to the employment.
“If somebody’s wearing a hijab, for example, at the workplace, it doesn’t really have any connection to what they actually do,” says Toye. “In most workplaces, it’s probably not a significant issue to the point where the dress code would even address this, but I think the critical thing is that employers need to be mindful of the fact that they have obligations to accommodate human rights and they also have an obligation to not be implementing policies that negatively impact people of certain religions.”
Duty to accommodate
Of course, there are workplaces where certain religious clothing isn’t feasible for safety reasons, such as a turban in a construction site where hardhats are required or beards where facial protection tight to the face must be worn. But a simple ban on certain clothing or religious attire may still not be appropriate in such workplaces — as with any human rights issue, employers have a duty to accommodate, says Toye.
“When legitimate [safety] interests intersect with somebody’s religious beliefs, it may be that the employer needs to engage in the accommodation process in the same way that they would for other kinds of accommodations in the workplace. I don’t see it as being all that different than any other kind of request for accommodation, except that with religion, it’s a little bit more challenging to figure out — whether it’s a genuinely held religious belief and what that entails. It’s a complicated issue, more so than asking a doctor for some clarification around what kinds of limitations a patient might have in the workplace.”
In addition to religion, employers have to be careful that a dress code policy doesn’t negatively impact people with other characteristics protected under human rights legislation. The most common ones that come up in dress codes are that of sex and gender — including identity and expression, she says, and flexibility with such policies is key — not just for clothing, but also for things such as grooming and hairstyles.
“What we want see is a range of options that employees can wear, regardless of their sex or their gender or even disability,” says Toye. “You want to see a code that is mindful about having options that are available to everyone and don’t make distinctions based on sex or gender or any other protected ground.”
Despite the rise of remote work, many women are still being asked to dress provocatively, says one expert.
It’s likely Quebec’s Bill 21 will be under fire for some time, says Toye, and it remains to be seen if it will remain law in the province, but it’s probably safe to say similar legislation won’t be enacted elsewhere in Canada for employers to follow — nor should employers have that mindset.
“There’s a lot of emphasis being put in by employers and businesses on diversity initiatives and this law kind of goes against that direction to a certain extent for public servants in Quebec,” she says. “I’m sure there will continue to be challenges to it and we’ll see how it all shakes out.”
