Can an Employer’s “Clean Shaven Policy” Constitute Discrimination Based on Sex or Gender Expression?

Written on behalf of Peter McSherry

A recent decision from the Human Rights Tribunal of Ontario, Browne v. Sudbury Integrated Nickel Operations (2016), 2016 HRTO 62 [Browne], addresses a novel question in Ontario human rights jurisprudence: is a man’s decision to grow a particular type of facial hair capable of being protected under Ontario’s Human Rights Code, R.S.O. 1990, c. H.19? Following lengthy arguments on this issue, Vice Chair Mark Hart ultimately held that an employer’s “clean shaven policy” cannot be regarded as amounting to discrimination based on sex or gender expression.

In Browne, the employer ran a mining, milling and smelting operation in Sudbury. The applicant, Christopher Browne, worked in the employer’s smelter division, which processed nickel concentrate into nickel matter. All employees who worked in the smelting plant, including Browne, were required to be fitted for and carry an approved respirator mask. For certain tasks, including those performed by Browne, employees were required to wear the mask to protect  themselves from potential exposure to noxious gases or dust. For those employees required to use a respirator mask, the respondent employer had a “clean shaven policy”. This policy prohibited affected employees from wearing beards which could interfere with the fit of the mask. However, not all facial hair was prohibited. For example, a neatly trimmed moustache or a “soul patch” was permissible under the employer’s policy.

In the spring of 2014, in part due to a Ministry of Labour inspection, the employer announced that, effective April 1, 2014, the “clean shaven policy” would be strictly enforced. Although Browne expressed discontent for his employer’s policy, he ultimately shaved off his facial hair and thereby avoided discipline. However, Browne subsequently filed a human rights complaint against his employer, alleging that its policy constituted discrimination on the basis of gender expression. In order to fully address Browne’s complaint, the Tribunal considered whether the employer’s policy discriminated against Browne on the basis of sex as well as gender expression.

Following a review of pertinent human rights jurisprudence, Vice Chair Mark Hart concluded that the Supreme Court of Canada had addressed the facial hair question in Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 [Brooks], a case concerning the exclusion of pregnant women from a group insurance plan. In Brooks, Hart found that the Supreme Court had endorsed the opinion that growing facial hair could not be elevated to a right protected under human rights legislation, absent any connection between facial hair and religious observation or other protected human rights ground besides sex. Even if he was not bound by the Supreme Court of Canada’s consideration of this issue, Hart wrote that he agreed with and adopted the view that wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation. However, like the Supreme Court of Canada, Hart suggested the result might be different if a connection existed between the growing of facial hair and religious observation or other protected human rights ground apart from sex.

In 2012, the terms “gender identity” and “gender expression” were added to Ontario’s Human Rights Code as human rights grounds protected from discrimination. However, Vice Chair Hart also rejected interpreting “gender expression” as broad enough to protect men’s ability to grow beards in the workplace. Hart wrote:

In my view, interpreting “gender expression” broadly to extend protection to the right of men to grow beards would do violence to the important and fundamental purposes sought to be achieved by human rights legislation. There is nothing to indicate that bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression [emphasis added].

To find out more about human rights in the workplace, contact employment lawyer Peter McSherry online or at 519-821-5465.

To read the full decision, click here.