Canada: Human Rights And Workplace Policies

Last Updated: March 29 2010

A recent decision of the Ontario Human Rights Tribunal (the "Tribunal") has shed further light on the interaction between human rights and workplace policies. The case, Saadi v. Audmax Inc. [2009] O.H.R.T.D. No. 1567 (QL) ["Saadi"], involved a Canadian-born Muslim female employee of Bengali heritage.

The employee claimed that her employer violated the Ontario Human Rights Code (the "Code") by discriminating against her during her employment and in her termination. The discrimination claim related to, among other things, the employer‟s enforcement of both an office dress code and so-called "microwave" policy.

With respect to the dress code, on more than one occasion the employer verbally reprimanded the employee in connection with her work attire. In one incident, the employer subjected the employee to a disciplinary meeting in which she was told that her clothing, including a "tight short skirt and leggings", an anklet that "jingled", open-toed "slippers" and a "cap" ("Hijab"), was inappropriate. The employee claimed that her outfits were consistent with her religious belief which required her to wear modest, loose fitting clothing. The employer refused to accept this explanation, stating that the employee's attire was an unacceptable violation of the company dress code which explicitly required the wearing of so-called business attire at all times. The dress code provided specific examples of appropriate clothing including suits, dresses, skirts, and dress pants. The employee claimed that the employer's enforcement of the policy constituted discrimination on the basis of sex and creed.

The employee also claimed that the employer discriminated against her in its enforcement of the "microwave" policy. The policy, titled "Health and Safety Concerns", included a set of guidelines regarding the reheating of food within the office. Under the guise of environmental sensitivity, the policy stated that individuals should refrain from using the microwave for foods which could trigger allergies. The policy however was vague and did not provide examples of food which might trigger an allergic reaction. The employer then subjected the employee to a disciplinary meeting in which she was reprimanded for microwaving traditional Bengali dishes at work. The employer claimed that the heating of such dishes left an odour which constituted a violation of the policy. The employee claimed that both the policy and its enforcement constituted discrimination on the grounds of race, ancestry, ethnic origin, and place of origin.

The Tribunal held that the dress code and "microwave" policies, along with the manner in which they were enforced, constituted discrimination in violation of the Code. With respect to the dress code, while disposing of claims with respect to the jewelry and footwear, the Tribunal found that the actions against the applicant relating to her dress and Hijab constituted adverse-effect discrimination. Further, the Tribunal did not find that the dress policy was a bona fide occupational requirement within the meaning of the Code. Rather, the Tribunal held that the dress policy violated her right to freedom from discrimination on the basis of religion.

The Tribunal also held that the employer discriminated against the employee with respect to the "microwave" policy on the basis of race, ethnic origin, ancestry and place of origin. The Tribunal specifically held that the vague nature of the policy meant that it could be enforced in an arbitrary manner, contributing to conditions for a discriminatory environment.

The Tribunal awarded $15,000.00 to the employee for infringement of the Code. The employee was also awarded $21,070.00 to compensate for lost wages, which she would have earned at the company had she not been terminated. The employer was also required to hire a consultant to review its Code compliance practices and to ensure that the employee's former manager enroll in sensitivity training.

What does this mean for employers?

Value of carefully drafted policies

The Tribunal's decision demonstrates the potential risks associated with policies which do not adequately and thoughtfully take into account human rights legislation. Non-neutral, vague and arbitrary workplace policies are potentially problematic because in allowing room for interpretation, they may be applied in a discriminatory fashion.

Clear communication

Be mindful of how the purpose and rationale of policies are communicated, particularly when they are first rolled out, and provide employees with an opportunity to communicate with you in terms of any potential difficulties they may have in complying with these policies.

Be careful with "hot button" issues

In our experience issues involving attire, personal grooming and food often involve strong and emotional responses from employees in the workplace. We recommend that you proceed very cautiously here by carefully reviewing and re-reviewing your planned course of action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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