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The Turban and the Hard Hat Again

 Image Preview     Law students likely recall Bhinder v. CNR, a Supreme Court case from 1985 in which the Court ruled that a rule requiring a Sikh to wear a hardhat (and therefore remove his turban) was a bona fide occupational requirement and not discriminatory.  The Court later changed its approach (in Central Alberta Dairy Pool) to discrimination and ruled that an employer must alter or adjust a workplace rule that has an adverse impact on an employee because of their religion to enable them to perform the job, unless there is no way to do so without causing the employer to suffer “undue hardship”.  That duty to accommodate now appears in Section 11 of the Ontario Human Rights Code.

A recent case before the Ontario Human Rights Tribunal raises the issue of the hard hat and religious freedom again.  The employee in this case argued that he was threatened with termination if he refused to remove his turban and wear a hard hat at a Home Deport yard.  Do you think that an employee should be permitted to accept the risk of not wearing a hardhat, so that a refusal by an employer to allow that choice violates the Human Rights Code?  Or do you think that an employer suffers undue hardship if required to waive its rule requiring hardhats in the case of employees who wear religious headgear?  There is a decent discussion of these issues in this piece from Macleans.

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4 Responses to The Turban and the Hard Hat Again

  1. Mel Kozun Reply

    November 11, 2015 at 10:42 pm

    You can CHOOSE not to board an aircraft if you CHOOSE not to be searched.

    Similarly, you can CHOOSE not to do a job if you CHOOSE not to wear the appropriate safety equipment (or uniform, but that’s another argument for another day).

    A person’s religious freedom should not take precedence over workplace safety.

    Workplace safety rules are applied to ALL, regardless of religion, race, origin or creed.

    You can’t play hockey or football without a helmet, yet there are a plethora of Sikh athletes in the amateur and professional ranks.

  2. Darren Reply

    April 18, 2016 at 8:51 pm

    The problem with this is that the company is responsible for you if you are hurt at work. Workers compensation will apply and based on your injuries the cost will escalate substantially. If the company is to be held responsible then they must be allowed to protect their assets (the workers). I do not believe there is anyway, in Canada anyways, for a worker to forego those rights.
    Take the responsibility of medical support, rehabilitation and all else involved in an injured worker away from the employer and then you can begin to look at workers waiving the requirements for protective gear.
    Then there is the issue of the folks that must tend to a head injury on site, emergency crews are trained for this, work mates are not. The company will also be held accountable for post traumatic stress syndrome and such where involved personnel are concerned. The cost of treating those compromised mentally will fall on the employer as well.

  3. Joshua Reply

    June 17, 2016 at 9:02 pm

    The only way I can see an employer will allow this, would be the employee sign a waiver saying that it was their conscious decision, and the employer cannot be held liable for compensation if said injury could have been prevented by a hardhat.

    Otherwise an employer would be reluctant to hire anyone exempt from wearing safety gear. Either that, or limiting them to locations and tasks on a site where a hardhat is not required.

  4. The Turban Guy Reply

    October 11, 2018 at 5:23 am

    I am a Sikh myself, but I do not understand these arguments. Yes, we do wear our turbans for religious reasons but they are not a replacement for safety gear. Same goes for when you’re driving a motorcycle. I have done volunteer work for tying turbans at a lot of Visakhi Parades with fellow members of Motorcycle groups but our folks do not understand that if there’s an accident, a good helmet will protect your head way better than a turban. Same thing applies in this case as well, if something hits in the head of this employee, he has more chances of surviving if he was wearing a helmet or proper safety gear compared to wearing a turban.
    And another thing to note is that almost no one actually understands the religious/spiritual meaning of the turban anyway, so there’s no point of keeping it on your head other than a sign of our culture.

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