When these situations arise, human rights legislation is pitted against occupational health and safety legislation and employers that accommodate a worker’s religious request may be in contravention of health and safety requirements. So, what do you do?
It’s clear in human rights legislation that discriminating on the basis of a person’s religious beliefs is prohibited. It is also clear in occupational health and safety legislation that employers have a primary duty to provide information, instruction and supervision and take reasonable precautions to protect the health and safety of the worker. Employers have the duty of balancing the effort between keeping the worker safe and accommodating religious requests.
The primary topic that has received the most attention over the years deals specifically with hard hats and turbans. This has been discussed and evaluated since 1985 in the Bhinder vs. Canadian National Railway case where Mr. Bhinder worked as a maintenance electrician in the coach yard for four years. CN Rail changed policy and announced that everyone who worked in the yard would have to wear a hard hat. As a member of the Sikh religion, Mr. Bhinder was forbidden to wear anything over top of his turban and refused to wear the hard hat. Because of his decision, he was fired. He filed a complaint with the Canadian Human Rights Commission stating that he had been discriminated against based on his religious beliefs.
The Canadian Human Rights Tribunal found CN had engaged in a discriminatory practice and ordered reinstatement of Mr. Bhinder and compensation for lost wages. The Federal Court of Appeal set aside the decision and referred it back for disposition on the basis that the new rule was not discriminatory. Did the hard hat rule discriminate against Mr. Bhinder on religious grounds? Did the employer have a duty to accommodate short of undue hardship?
The answer to these questions came in December of 1985. The Supreme Court of Canada ruled that the decision to have hard hats worn was a bona fide occupational requirement: a rule or requirement that was made in good faith with the intention of achieving its stated business purpose and not as a means of skirting the law. In this case, it was determined that hard hats were a genuine job-related requirement, so there was no discrimination and therefore nothing to accommodate.
This decision has risen on numerous occasions since then and has been consistent when the employer can show that the job cannot be done without the requirement in place. There was a similar case in 2006 where turban-wearing Sikhs applied for an exemption to wearing hard hats and lost in arbitration. They were reassigned to an area where hard hats weren’t necessary. Another case arose in 2008 when two mill workers objecting to a mandatory hard hat policy were simply reassigned to a less dangerous part of the mill. Both cases were in B.C. where members of the Sikh religion are not required to wear a helmet while riding a motorcycle. One of the most recent decisions came in 2016 where the Quebec Superior Court has ruled against an application to have hard hats exempted for turban-wearing Sikhs at the Port of Montreal.
This is not to say that you don’t accommodate, but there are certain factors that need to be taken into consideration. Considerations may include investigating alternative approaches that do not have a discriminatory effect. Employers must consider whether it is necessary for all employees to follow the standard for the employer to accomplish the stated objective, or if group or individual differences could be established. Where employers rely on safety standards to support undue hardship, they must be able to identify the specific hazards the individual or group may be exposed to and they must provide convincing evidence that the safety concerns outweigh the obligations owed to an individual seeking accommodation based on religious beliefs.
Jeff Thorne is manager of training at Occupational Safety Group.
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