Employers must accommodate ‘sincere’ religious beliefs (Legal view)

Workers concerned about link between biometrics and ‘mark of the beast’

An Ontario company breached its duty to accommodate three former employees in a case where new technology conflicted with the workers’ religious beliefs, an arbitrator has ruled.

Woodbridge, Ont.-based 407 ETR Concession Company Ltd. operates the 407 toll highway network near Toronto. It’s responsible for the administration and tracking of more than one million customers who use the highway. Security is a concern since the company’s premises contain sensitive areas where customer data and expensive equipment are stored. 407 ETR also faces hostility from customers due to its ability to deny new license plates to drivers owing payment.

407 ETR planned to introduce a new security system for its employees, upgrading from a swipe card and password system to a biometric scanning system that involves the electronic measuring of the right hand to identify an individual. The company was concerned about misuse or misplacement of swipe cards and the new biometric system would solve this problem. In the new system, the hand measurement is taken and converted to an algorithm of a nine-digit number. When a hand is placed on a reader at an access point, it is measured and compared to the algorithm stored in the system. No images or other information about the hand is stored — only the nine-digit number representing the hand measurement. 407 ETR planned to introduce the new security system in stages, with the customer service representatives at the front counter coming first.

Carola Williams, Quomena James and Kerrylyn Black worked as customer service representatives for 407 ETR. All three were hired in 2003 and the company considered them good workers. When 407 ETR informed the customer service representatives of the new biometric security system, Williams, James and Black immediately indicated they could not participate due to their religious beliefs. They objected to the use of measurements of parts of their body where they would be part of a system of numbers used as identifiers. The three women are members of the Pentecostal faith, which warns against being marked by the “mark of the beast,” particularly on their foreheads or right hands, and its followers must resist any attempts to make them submit to such marking. The Pentecostal faith also includes the suspicion that technology will provide the means for a databank on who has been marked. The three workers believed 407 ETR’s biometric system could be part of this databank and the hand measurements required for enrolment in the system could be a way of marking them.

407 ETR claimed it attempted to accommodate the workers by using other options allowed by the system. One was to use the left hand rather than the right and the other was to measure the hand while wearing a tight fitting glove so the actual hand measurements were not taken. However, both options were not acceptable to the workers since their beliefs prohibited the taking of any measurement associated with their bodies. The company proceeded with progressive discipline against the resisting workers, beginning with a written warning followed by one-day and three-day suspensions. Finally, on May 18, 2005, with the three workers still refusing to enrol in the biometric system, they were fired. The workers responded through their union by bringing a complaint for discrimination due to their religious beliefs, contrary to both their collective agreement and the Ontario Human Rights Code.

407 ETR felt it was not possible to accommodate the workers any further and “the only alternative will be to jettison the system.” It had already purchased 10 of a planned 25 biometric scanning units, though they were not being used as the company suspended implementation until the arbitration was decided. The company also argued limiting the workers to one area where they wouldn’t need to move through security areas was not reasonable either. The company felt the system was necessary for security and canceling its implementation or limiting the work area of three customer service representatives would constitute an undue hardship.

The arbitrator, Christopher Albertyn, first addressed the sincerity of the workers’ beliefs, which is fundamental to the protection of religious freedom under the code. Though the Pentecostal church is not specifically opposed to biometrics, it allows its members to interpret its significance according to their own conscience. He saw no reason to doubt the convictions of the three women.

“I find the (workers’) beliefs are religious and they are sincerely held,” Albertyn said. “They are therefore entitled to the protections against discrimination in the collective agreement and under the Ontario Human Rights Code, and they are entitled to have their beliefs accommodated.”

Albertyn found while 407 ETR offered alternatives to the initial requirement of measuring the right hand, these suggestions were recommendations from the manufacturer and were not compatible with the workers’ beliefs. When the workers rejected the alternatives, the company continued its attempts to persuade them to enrol instead of trying to accommodate them. It then treated their refusal as insubordination and began progressive discipline. At each stage of discipline, beginning with verbal counselling and then letters followed by suspensions, the workers were asked to enrol. When they refused, the next stage of discipline was implemented until they were terminated.

This was the wrong approach, according to Albertyn.

“The (workers) were not being insubordinate; they were asserting a fundamental right they possess under the collective agreement and the Human Rights Code,” he said. “Their refusal should have been treated as a significant human rights issue, not a disciplinary matter.”

The arbitrator found 407 ETR did not seriously explore what solutions might be possible, other than slight variations to its original plan, when it shifted into disciplinary proceedings. It failed to investigate what it could manage without undue hardship and didn’t shift its focus away from having the three employees use the biometric system. Had it done so, a solution might have been found.

During the hearing, it was revealed that it was possible for the three workers to be entered in the new security system while continuing to use swipe cards. While more specific information would not be available as it would be with biometric information, Albertyn pointed out if those three were the only employees using them, it would be easy to figure out who it was when a card was used. As long as this practice was limited to a small number of employees, the biometric system would still be viable and the company would not be subjected to undue hardship.

Albertyn found the biometric scanner security system discriminated against the three women because of their religious beliefs. By not co-operating with the workers to find a solution and firing them, Albertyn found 407 ETR breached its duty to accommodate them and their beliefs.

Albertyn ruled Williams, James and Black should be reinstated to their jobs as customer service representatives “without loss of earnings or seniority” and any salary lost since their termination should be paid.

For more information see:

407 ETR Concession Co. v. CAW-Canada, Local 414, (January 28, 2007), C. Albertyn Member (Ont. Arb. Bd.).

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter. He can be reached at (416) 298-5141 ext. 2643 or [email protected]

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