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Date:
2017.06.15

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THE EMPLOYERS' EDGE

Heads Up! Quebec Court Rules that Sikh Workers’ Human Rights were Not Violated by Mandatory Hard Hat Policy

Quebec Superior Court Justice André Prévost recently dismissed a claim by three Sikh men against their respective employers for refusing to allow them to perform their duties without wearing a hard hat.  Although this decision appears to be in line with legal precedent, the debate between religious freedom on the one hand, and occupational health and safety and legal liability on the other hand continues.

Lakhvinder Singh, Kashmir Singh, and Harvirenderpal Singh Clair are each followers of the Sikh faith who wear turbans in accordance with their religious convictions.  In 2006 when their action was brought, they were employed as truck drivers by private container transport companies.  Their duties required them to deliver and pick up shipping containers at Port of Montreal terminals.  Each trip to the port lasted about 30-40 minutes, with five to six minutes of total time requiring the driver to exit the vehicle.  Even with such little time outside of the cabs of their trucks, visitors to the port were still at risk of head injury due to hazards such as falling ice or snow, items falling out of stacked or lifted shipping containers not properly sealed, and moving objects like truck doors or loose container straps.

In 2004 the Criminal Code of Canada was amended to require those responsible to direct workers to take reasonable steps to prevent bodily harm, failing which they could be guilty of criminal negligence.  A subsequent review of historical safety incidents at the port revealed 135 head injuries between 1998 and 2003.  Accordingly, in June 2005, the companies instituted a mandatory hard hat policy designed to both protect the health and safety of workers at the port, but also to comply with employers’ legal obligations under the Criminal Code and the health and safety provisions of the Canada Labour Code.

Shortly after the policy was implemented, the three employees complained about the apparently discriminatory effect.  A Sikh man may observe the faith’s prohibition on cutting his hair or beard, and requirement to wear a turban.  He would be forbidden from removing his turban in order to wear a hard hat in its place.  Although there is no strict prohibition from wearing a hard hat over the turban (as some Sikh employees did at the employers’ other sites), each employee in this case sincerely held the belief that their faith did not allow them to do so.  For several years the employers attempted to accommodate the employees by having additional personnel on hand to perform the exterior tasks such that the drivers would not have to exit their vehicles.  This practice resulted in significant added costs, inconvenience, and congestion in the port, all of which made it untenable to continue.

The three drivers sought a declaration from the Court that the policy was discriminatory, and asked that they be exempt from the hard hat requirement on the basis of religious accommodation guaranteed by the Canadian Human Rights Act and the Quebec Charter of Human Rights and Freedoms.

Justice Prevost agreed that the policy resulted in prima facie discrimination because it created a difference in treatment between Sikh employees and their co-workers on the basis of their religious convictions.  However, he went on determine that the policy was justified as a BFOR/BFOQ (Bona Fide Occupational Requirement/Qualification), because it was adopted in good faith for a purpose rationally connected to the work, it was reasonably necessary to accomplish that purpose (including compliance with the relevant legislation), and that it was not possible to accommodate the employees without undue hardship.  It is particularly important to note that the Court found that the drivers failed to assist in identifying suitable accommodation, and that they in fact refused to discuss any alternative to a full exemption from the policy.

The Court ultimately found in favour of the employers on all issues in dispute.  While no one wants employees to be excluded from work due to their religious convictions, this case does provide encouragement for employers who do their diligence when it comes to religious accommodation.  The employers here had a rational and factually-supported reason to implement the policy they did, based on legal requirements and an analysis of the safety conditions of the workplace.  Next, they listened to the drivers’ complaints and attempted to institute an alternate arrangement, which proved to constitute undue hardship after several years of accommodation.  The drivers did not turn their minds to any different arrangements, and therefore failed in their own duty to participate in the accommodation process.

This outcome is consistent with a line of factually similar cases dating back to the Supreme Court of Canada’s 1985 decision in Bhinder v. Canadian National Railway.  However, it certainly should NOT be taken to mean that employers do not have a duty to accommodate employees’ religious values.  It is clear from the state of the law in Ontario and across Canada that employers need to accommodate employees on the basis of religion, which may include such accommodations as making arrangements for employees to have prayer time during their working hours and making exceptions to dress codes.  What employers are NOT required to do, is to accommodate religious requirements beyond the threshold of undue hardship, such as where accommodation might make the workplace unsafe, or violate the Criminal Code or applicable Health and Safety legislation.

The drivers in this case have applied to have their case heard by the Quebec Court of Appeal.  CCPartners will stay on top of any developments in this case, and will remain ready and able to advise our clients on their responsibilities to accommodate employees on the basis of religion, and how to take steps to ensure that your policies and procedures do not give rise to potential discrimination claims.

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