Q:I have been reading articles about religious items, such as Sikh daggers and Muslim women’s headgear. Does a refusal to let them have these items violate their human rights? What about other people’s rights to safety?
A:This is a hot button issue. It’s hard to get into a discussion on this topic without someone’s feelings being bruised.
The answer is complex. Likely, there are some fundamental rights that are difficult to argue with. A Sikh man wearing his turban would seldom interfere with his other duties or create problems in a particular workplace. Still, there may be safety and other matters.
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However, some human rights rulings go out of their way to violate the principles of common sense. We all know a child with a severe nut allergy so most schools ask that no one bring nuts into the school to protect the child. Most people comply without complaint.
In Ontario, food issues in the workplace recently took a decidedly nasty turn when they became the subject of an Ontario Human Rights Tribunal decision and a court decision after that.
A woman was fired from her job as an intake worker. She worked for a company that received public funds for programs delivered to various ethnic and religious communities.
Two things were in issue. First, her employer said she wore a cap, which was against company policy. The employee said the hat was a modern designed hijab, which satisfied her religious and traditional requirements. The human rights adjudicator said the employer had violated the employee’s rights by trying to dictate what type of headgear she could wear on the job.
The second complaint related to food and the use of a microwave by an employee, who brought food to work and warmed it in the staff room microwave and caused odours that provoked others’ food allergies. The company created a policy surrounding use of the oven, which stated “due to food allergies and odour from some food, please refrain from or strictly limit the use of the microwave for foods that present same.”
The policy referred to both seafood and peanut allergies, both of which can be serious. The human rights panel adjudicator found that at law, this had an adverse effect on this employee and was discrimination. The policy came out in 2001 and was amended in 2005, yet the adjudicator found it to be a moving target.
As a remedy, the human rights board ordered the employer to pay its employee $15,000 to cover lost dignity and hurt feelings for these violations, as well as more than $21,000 in lost salary.
Not wanting to take a $36,000 hit, the company appealed and went to court seeking judicial review of the adjudicator’s decision.
The company won. The Ontario judge offered a review that was highly critical of the findings of the human rights adjudicator, which seemed to be based on little or no evidence.
Regarding the food policy, the judge said that the adjudicator’s reasons “do not disclose a rational basis for the conclusion that there was discrimination. In that sense, the reasons cannot be said to be reasonable.”
There was no evidence or a clear finding on what ethnic group the policy offended. There was no clear finding that this woman was even fired because of this policy.
With respect to the headgear issue, the court also differed from the adjudicator. The adjudicator had overlooked the fact when the employee’s dress code had come up previously, it was because her clothes were too tight and short, “the very opposite of modest and religiously conforming attire.”
In short, the court found there was no actual evidence that this person had not been fired due to discrimination and was essentially using that as an excuse to get back at the employer who had fired her for other reasons.
I agree that human rights must be guarded and not abused but that principle runs in both directions.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
