Two years ago, I mentioned a complaint that had been filed by an employee of a security guard company alleging that Home Depot had discriminated against him by insisting he wear a hardhat, which would have required him to remove his turban. That case was decided recently, in part.
The Tribunal broke the case into two parts. In part one, the tribunal ruled that Home Depot discriminated against the complainant by insisting he wear a hardhat and remove his turban, and unlawfully harassed him based on his religion. Part two must now be decided, in which the Tribunal will address whether the Code nevertheless creates a defence for Home Depot on the insistence that a hardhat been worn. That defence would be that the hardhat rule is “reasonable and bona fide”, and there is no way to accommodate the complainant’s religion without undue hardship.
Here is the decision of the Ontario Human Rights Tribunal on part one of the case.
Brief Review of Facts
The complainant was assigned to work at a Home Deport store still under construction in Milton. A HD manager told him he needed to wear a hard hat or he could not remain at the site. The HD manager called the complainant’s employer (the security company), and was told that the complainant could not be asked to remove his turban, since he wore it for religious reasons. Nevertheless, the HD manager insisted that the complainant leave the workplace if he was not prepared to remove the turban and where a hardhat. The Tribunal found that HD’s manager was rude to the complainant.
The Tribunal also found that there were people around the work site who were not wearing the hardhats, including the HD manager himself at times. This proved to be important, because the Tribunal found the “mandatory hardhat rule” was not uniformly enforced, yet was applied in an inflexible way to the complainant.
1. The Tribunal ruled that the complainant’s refusal to remove his turban to comply with a company rule triggered the prohibition on discrimination in employment on the basis of “creed”, which includes religion.
2. The fact that some Sikhs do not find wearing turbans to be mandatory under the religion was irrelevant, since what matters is whether the complainant “has a genuine belief that the turban is an article of his faith”, which he does.
3. Section 5 prohibition on discrimination in employment applies here, since Home Depot was the “de facto” employer of the security guards when they were assigned to the HD site.
4. The fact that the Occupational Health and Safety Act required HD to ensure protective equipment was worn is not an answer to the Human Rights Complaint, because HD only selectively enforced that rule, as noted by the Tribunal:
After careful consideration of all the oral and documentary evidence, I am satisfied that the complainant was treated differently because of his turban and that this was negative differential treatment. It is clear that the complainant was treated differently in two respects: he was required to wear a hard hat outside, whereas others were not forced to do so, and he was not allowed in the building’s access area, despite the fact that some others passed through this area without putting on hard hats. Only the complainant, being the individual whose right to employment without religious discrimination was implicated, was the one required to leave the building and was not allowed on the grounds because of the hard hat rule.
5. The HD manager also violated the Code’s prohibition on harassment based on creed:
In sum, I find the personal respondent goaded the complainant to remove his turban in order to be allowed to work and also taunted him with the threat of termination. I find the personal respondent’s comments and conduct were derogatory in connection to the complainant’s creed, and that they entered the realm of discriminatory treatment and that this behaviour is beyond the limits of “reasonable social interaction” in the circumstances:
In conclusion, the Tribunal found that HD and the HD manager has discriminated against the complainant in insisting he wear the hard hat and remove his turban.
Tribunal Must Still Decide if Employer has a Defence Under the Code
However, that was only the first part of the case. The Tribunal must now decide whether HD has a defence under the Code under Section 11 of the Code. That section says that it is not discrimination if a rule that has an adverse impact on an employee because of religion is a “reasonable and bona fide” rule and it is not possible to accommodate the employee’s religion with suffering undue hardship.
So in the next part of the case, HD will argue that it was within its legal rights to insist on the complainant wearing a hardhat. My guess it will have a hard time winning that argument given the Tribunals’ factual findings, which include the fact that there were areas of the workplace where HD made little attempt to enforce the hardhat rule.
However, what if wearing hardhats is a requirement of the Occupational Health and Safety Act at this workplace? Does the duty to accommodate require, or even permit, that requirement to be waived in order to accommodate the complainant’s religious beliefs?
What do you think?