The Turban and the Hard Hat Again

      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.