All employees in Canada are entitled to a workplace free from discrimination, harassment, or unequal treatment. Under Ontario’s Human Rights Code (the “Code”), employers have a legal duty to ensure their policies and practices do not discriminate against employees based on protected grounds, including creed or religion.
While the Human Rights Code doesn’t define creed, it’s generally interpreted to mean religion. However, creed can also include non-religious belief systems that are deeply held and influence a person’s identity and way of life. For example, ethical veganism has been considered a creed in some tribunals. Because of the subjective nature of this protected ground’s interpretation, it is important to consider what could constitute discrimination based on a party’s creed.
What is Workplace Discrimination Based on Creed?
Workplace discrimination occurs when an employee is treated unfairly or harassed based on characteristics protected under the Code. These include race, gender, disability, age, and creed.
Creed, a protected ground under the Code, refers to a system of sincerely held beliefs integrally linked to an individual’s identity, self-definition, and worldview. It is often, but not exclusively, tied to religion.
Employers are prohibited from imposing requirements, policies, or workplace norms that:
- Directly discriminating against an employee based on creed or
- Indirect discrimination (also known as constructive discrimination) unless the requirement is proven to be bona fide and accommodates employees to the point of undue hardship.
Defining Creed: What Qualifies Under the Code?
Unlike other terms in the Code, the legislation does not explicitly define creed. The Ontario Human Rights Commission provides essential guidelines, stating that a creed typically includes:
- Sincerely, freely, and deeply held beliefs: These beliefs guide an individual’s decisions, identity, and behaviour.
- Ultimate questions of human existence: A creed may address life’s meaning, the existence of a higher power, and other existential topics.
- Systemic or collective connection: The beliefs are often connected to a community, tradition, or faith.
Courts and tribunals have clarified that:
- A creed must be more than personal preference, singular belief, or political opinion.
- For example, deeply held religious practices such as Sabbath observance or dietary restrictions can qualify under the Code.
- Political or secular opinions alone do not fall under the definition of creed.
Understanding Workplace Creed-Based Discrimination
Beliefs Must Be Systemic and Integral to Identity
The decision in Griffin v West Lincoln (Township) involved a human rights complaint by an employee who alleged that a workplace vaccination policy discriminated against them based on creed. The employee argued that their Evangelical Christian beliefs prevented them from receiving the COVID-19 vaccination. They cited scriptural passages to substantiate their claims, describing their body as “a temple of the Holy Spirit” and their obligation to “obey God before men.”
The Human Rights Tribunal of Ontario (HRTO) dismissed the complaint, finding that the employee’s stated beliefs lacked the systemic or collective component required to constitute a creed under the Code. While the Tribunal recognized that the employee’s beliefs were sincerely held, they were deemed personal convictions rather than a broader, overarching belief system.
The decision underscored the following principles:
- Personal convictions alone are insufficient to qualify as a creed. There must be a nexus with a recognized belief system or religion.
- A complainant must prove that their beliefs are systemic and integral to their identity.
This case reminds us that while the Code protects employees from discrimination on the grounds of creed, not all objections to workplace policies meet the legal threshold.
Imposing Religious Beliefs on Employees
In O.P.T. v Presteve Foods Ltd., the HRTO considered a situation involving workplace harassment based on religious practices. The complainant, a temporary foreign worker, alleged that her employer pressured her to engage in religious activities against her will. The Tribunal found that the employer’s conduct poisoned the work environment and awarded significant compensation for violating her rights under the Code.
This decision highlights that employers must refrain from imposing their religious beliefs on employees or compelling participation in creed-based activities.
Reasonable Accommodations Must be Explored
In Huang v 1233065 Ontario Inc., an employee was terminated after requesting accommodation for religious holidays. The HRTO ruled that the employer’s failure to accommodate the employee’s religious observance constituted discrimination based on creed. The Tribunal emphasized that employers must explore reasonable accommodations for religious practices unless doing so would cause undue hardship.
Examples of Creed-Based Discrimination in the Workplace
Dress Codes or Appearance Policies
While often necessary for maintaining a professional image or ensuring safety, dress codes can become discriminatory if they fail to accommodate religious practices. In Ontario, employers must balance legitimate business needs with the right of employees to express their religious beliefs through dress and appearance. A blanket prohibition on head coverings, for example, could disproportionately affect Sikhs who wear turbans or Muslim women who wear hijabs. Employers can engage in a process of accommodation to explore options that allow employees to observe their religious practices while meeting reasonable workplace requirements. This might involve modifying uniforms or providing alternative safety equipment.
Scheduling Conflicts
Many religions observe specific holidays and weekly days of worship or require prayer at certain times. Employers in Ontario have a duty to accommodate these religious practices to the point of undue hardship. This means that refusing reasonable requests for time off for religious observances or denying flexible scheduling options could be discriminatory. Employers should be open to solutions like shift swapping, flexible start and end times, or using vacation or unpaid leave. The employer must explore all reasonable options before claiming an accommodation would cause undue hardship.
Compelled Participation in Creed-Based Activities
Employers cannot force employees to participate in religious activities or events that conflict with their beliefs. This principle protects employees from coercion and ensures that the workplace remains a neutral space where individuals are free to practice their faith. Even subtle pressure to participate in religious activities, such as creating an expectation of attendance at prayer meetings or religious celebrations, can be considered discriminatory. Employers should strive to create an inclusive environment where all employees feel respected and valued, regardless of their religious beliefs. This includes avoiding the promotion of any particular religion within the workplace.
Harassment Based on Creed
Harassment based on creed is a violation of the Ontario Human Rights Code and creates a poisoned work environment. This includes any unwelcome comments, jokes, or actions that target an individual’s religious beliefs or practices. Examples include making derogatory remarks about someone’s religion, mocking religious customs, or displaying offensive religious symbols. Employers have a legal responsibility to prevent and address harassment in the workplace. This includes implementing clear policies against harassment, training employees, and taking prompt and effective action to investigate and address complaints.
The Employer’s Duty to Accommodate
It doesn’t simply mean inconvenience or minor disruption to business operations. Rather, it refers to a situation where accommodating the employee would create significant difficulty or expense for the employer. Several factors are considered when assessing whether an accommodation would cause undue hardship, including cost, health, and safety considerations.
For instance, if accommodating a religious practice would require significant capital expenditures or create a serious safety hazard that cannot be mitigated, it might be considered undue hardship. However, it’s crucial to emphasize that the threshold for undue hardship is high. Employers must demonstrate a genuine and substantial effort to explore alternatives and provide reasonable accommodation before claiming undue hardship. Simply stating that an accommodation is inconvenient or slightly disrupts workflow is insufficient.
What Duty to Accommodate Can Look Like
The duty to accommodate is an active and ongoing process that requires employers to take concrete steps to address employees’ creed-based needs. A crucial first step is engaging in meaningful dialogue with the employee. This involves open communication to fully understand the employee’s specific needs and the nature of their religious practice or belief. It’s not enough for employers to assume they understand employees’ needs; they must actively listen and ask clarifying questions. Based on this understanding, employers should then consider various accommodation options.
Accommodation options include flexible scheduling, such as adjusted start and end times or allowing time off for religious observances. It could also involve granting exemptions from certain workplace policies that conflict with religious practices, like dress codes. Employers should also take proactive steps to create a respectful and inclusive workplace for all employees. This involves developing and strictly enforcing anti-harassment policies that explicitly prohibit discrimination and harassment based on creed. Providing diversity and inclusion training to all staff is essential to educate employees about their rights and responsibilities and to foster a culture of understanding and respect for diverse beliefs.
Steps Employees Can Take to Receive Accommodations
A crucial first step for employees is communicating their needs and beliefs to the employer. This communication should be timely and specific, outlining the nature of the religious practice or belief and how it may require accommodation in the workplace. It is helpful if employees can also propose potential solutions or accommodations that they believe would address their needs. This demonstrates a willingness to collaborate and find mutually agreeable solutions. It is also very important for employees to document any and all incidents of discrimination or harassment they experience. This documentation can serve as valuable evidence if further action is necessary, such as filing a complaint with the Human Rights Tribunal of Ontario. Keeping detailed records of dates, times, specific incidents, and any witnesses can help strengthen an employee’s case.
Contact Haynes Law Firm for Workplace Discrimination Advice in Toronto
If you are an employee facing discrimination or a different violation of your human rights in your workplace or an employer worried about the accommodation of a disability, then you need to speak to a trusted and experienced lawyer. Haynes Law Firm is here to assist you through your employment law needs. From our offices in downtown Toronto, Ontario, we proudly provide excellent legal advice to employers and employees seeking guidance. Contact us online or via telephone at (416) 593-2731 to schedule a consultation.
