Safety versus religion at work

Human rights legislation exists to protect certain groups of people who have certain characteristics from adverse effects that come about solely because of those characteristics. Such protected characteristics include grounds like sex, religion, race, place of origin, sexual orientation, and marital status. In the employment terms, this means employers can’t use any protected grounds as a factor in the decision to fire someone, demote them, or otherwise treat them differently than other employees.

However, human rights legislation does allow discrimination in certain circumstances.

The City of Toronto has been embroiled in controversy lately because of a new rule it implemented requiring security guards at all city sites to be clean-shaven so they can wear fitted N95 respirators that seal directly on the face, as a means to protect from the spread of COVID-19. What’s causing the kerfuffle? Because of this rule, more than 100 Sikh guards employed by security contractors have been removed from their positions – the Sikh faith requires uncut hair, so the guards all have beards.

The World Sikh Organization got involved, calling for immediate reinstatement of the guards, claiming many have been demoted.

The purpose of the rule seems legitimate, as the city wants to reduce the risk of spreading COVID-19 at a time when case numbers and hospitalizations seem to be increasing again. So the intention isn’t to discriminate, but it’s a workplace safety issue.

Bona fide occupational requirement

Workplace safety can be one of the few reasons an employer can discriminate against employees based on a protected ground – safety may be a bona fide requirement of the job. While a bona fide occupational requirement can allow an employer to discriminate, it has to meet certain standards – it’s necessary to fulfill the requirements of the job, it was developed honestly and in good faith, and it’s necessary to ensure safe and efficient performance of the job. And, if all that is proven, the employer still must prove that it can’t accommodate the employee without undue hardship.

A few years ago, the Sikh faith in the context of workplace safety came up in Montreal, where Sikh truck drivers at the Port of Montreal challenged their employer’s rule that they must wear hard hats in the workplace. The truck drivers argued that their freedom of religion under Quebec and Canadian charter rights allowed them to wear turbans instead of hard hats. The employer had tried to accommodate them by allowing them to stay in their trucks while containers were loaded, but that practice increased loading time and wasn’t commercially viable.

The Quebec Superior Court of Justice found that safety was a legitimate reason to require the hard hats and accommodation wasn’t feasible. The province’s Court of Appeal agreed.

Going back nearly four decades, the Supreme Court of Canada overturned a human rights tribunal decision that found that Canadian National Railway discriminated against a Sikh electrician when it fired him for breaching safety rules requiring hard hats. The top court found that the rule was adopted for a genuine business reason and was reasonable to reduce the risk of workplace injury. It was a bona fide occupational requirement, the court said.

Now, if other legislation allows religious discrimination, it may be a different story, even if it seems to breach human rights. Many are familiar with Quebec’s Bill 21, passed in 2019, that effectively bans public servants – with the exception of daycare workers, private-school teachers, and some public-school teachers hired before the law came into force – from wearing religious symbols. This means the province, as an employer, can discriminate against its employees by telling them not to wear religious clothing such as turbans and hijabs. This doesn’t apply to private-sector employers, but it allows public-sector employers to tell employees that they can’t wear religious clothing, regardless of any religious beliefs that require it.

For now, such discrimination is allowed in Quebec, but it won’t be surprising if the province faces some human rights challenges over Bill 21 – not long after the bill came into force, a teachers’ union launched a lawsuit against the province.

So back to the City of Toronto security guards. According to the city, it recognizes the duty to accommodate and has in fact said that it has granted accommodation requests to some of its own employees and expects its contractors to do the same. And again, the city and the contractors would have to prove that they couldn’t accommodate the Sikh guard’s need to have beards – accommodation options could include investigating the viability of other types of face coverings, other locations where non-fitted masks could work, or some type of leave until the risk of COVID-19 infection decreases.

The fact that we’re over two years into the pandemic and the guards haven’t been removed from their positions until now suggests that there may be some accommodation options available.

If not, then the city and its contractors could legally discriminate against the Sikh guards and their beliefs. But it’s a high bar to prove it.