Canada: Biometric Identification And The Duty To Accommodate

The increasing use of biometric identification in the workplace has led to a number concerns regarding the extent to which employers are permitted to collect and use unique characteristics of employees, and concerns about the balancing of employee rights with employers’ legitimate business interests. For instance, a number of adjudicators have considered the issue in the context of privacy rights. More recently, the issues have expanded to the human rights context, in particular, an employer’s duty to accommodate employees where the use of the technology may conflict with their religious beliefs.

In 407 ETR Concession Co. v. C.A.W.,1 an Ontario grievance arbitration, three employees were reinstated after they had been discharged for refusing to enrol in the biometric hand scanner identification system, which the Company intended to introduce for access to, and within, the workplace. In this case, the Company had introduced a biometric scanner in order to improve security for its staff, to record more accurately employees’ time keeping, to prevent time theft, to know which employees were in which parts of the building at any time, and to limit access to restricted areas of the building. Although infrequent, the Company had also received various threats of harm.

Based on the above, it was clear that the biometric scanners were being introduced for legitimate work-related purposes. However, the Union and the employees claimed the terminations were unjust because the employees were discriminated against by the Company on account of their religious beliefs. The employees were members of Pentecostal churches, which take the position that submitting oneself to biometric scanning is a matter of individual conscience. There is no precept of the church which prohibits one from submitting to biometric scanning, nor is there one which requires one to do so. However, the employees believed that the biometric scanning system to be used by the Company could impose the "Mark of the Beast" on them and, as a consequence, they would risk damnation. In the employees’ view, taking the "Mark" would demonstrate their allegiance to the Anti- Christ, and their denial of their own faith.

Essentially, the Company treated the employees’ refusals to enrol as insubordination and the employees were taken through a process of progressive discipline: first verbal counselling, then a written warning, then a one-day suspension, then a three-day suspension, then finally they were dismissed on May 18, 2005.

At arbitration, the Company took the position that it could not proceed with the new identification system if it had to accommodate the employees in the manner they wanted, and its only alternative was to jettison the system, which it contended would be an undue hardship. Further, although this case concerned only the three employees, the Company took the position that making exceptions for the three employees would constitute undue hardship, given indications received by the Company that other employees may also object to enrolment.

There was no dispute between the parties that, under the management rights clause of the collective agreement, but for the accommodation issues in this case, the Company had the authority to organize its workforce and its business affairs in the manner it considered best. Accordingly, the issue before Arbitrator Albertyn was whether the Company accommodated the employees to the point of undue hardship.

One of the questions posed by Arbitrator Albertyn was whether the employees were required to prove more than the sincerity of their beliefs to establish that the beliefs are religious, and hence covered by the protection from discrimination on the ground of creed. In other words, to what extent must the employees’ beliefs objectively conform to the precepts of the Pentecostal church for those beliefs to be protected?

In the arbitrator’s view, the requirement of sincerity was a hurdle for the employees claiming accommodation on grounds of creed, however, in his view, the bar was not set very high. Arbitrator Albertyn explained that the assessment of sincerity is limited to ensuring that an asserted religious belief is in good faith, not fictitious, not capricious, and not an artifice. The arbitrator reasoned that, in this case, the employees sincerely believed that they could have driver’s licenses and G passports, with digital photographs and numerical records of their names, addresses and dates of birth kept in a government databank, without in any manner invoking the "Mark of the Beast". Yet they could not submit to the biometric scanner of a private corporation, even if they wore a latex glove, or used their left hands.

With respect to the extent of the Company’s accommodation, the Company had offered that the left hand be used, rather than the right, or the use of a latex glove. However, Arbitrator Albertyn found that the Company did not investigate changing the jobs of the employees, and had not engaged in any serious discussion with the Union as to how the employees might be accommodated.

In the arbitrator’s view, the Company had misconceived the nature of the problem, as the employee’s refusal, which should have been treated as a significant human rights issue, and not a disciplinary matter. In the arbitrator’s view, there were options available to the parties to accommodate the employees which would not constitute an undue hardship. However, by treating the employees’ refusal as a disciplinary matter, rather than a human rights accommodation, the Company unreasonably attenuated its exploration of options to accommodate the employees.

Based on the above, the arbitrator held that the biometric scanner discriminated against the employees on grounds of their creed. Further, he held that the accommodation sought by the Union and the employees – that the employees use the biometric scanner with a swipe card and password, without its biometric features – did not impose an undue hardship on the Employer. Accordingly, the Company had breached its duty to accommodate the employees to the point of undue hardship, and did not fulfil its obligations under the Human Rights Code.

The Arbitrator found that as a result of the breach, the employees were entitled to reinstatement in their employment, "subject to such organizational arrangements of their work as the Employer may reasonably require, without loss of earnings or seniority. The employees were also made whole for any loss of salary during this period".

Arbitrator Albertyn also provided the parties with some guidance in dealing with further cases of religious objection to the biometric scanner. He stated that the Company and the Union would need to establish whether those objections are founded in sincere religious beliefs. Having done so, the parties would need to explore with the employees concerned whether they would participate in the biometric scanner system on a modified basis. The options provided were the following:

  1. the employee concerned might enrol using the left hand, or a latex glove over the hand, or something else on the hand (such as a ring) to distinguish their own hand from that enrolled in the system;
  2. the employee might accept enrolment as long as the 9-digit template does not contain the numbers 666 (if this is technically possible); or
  3. the employee concerned might accept use of a smart card containing his or her biometric information.

If these accommodations were not suitable, the Arbitrator directed the Union and the Company to explore accommodation outside of the biometric features of the scanner, to the point of undue hardship.

Footnote

12007 CanLII 1857

www.blgcanada.com

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