Employer’s Hard Hat Policy Holds Up Against Religious Discrimination Claim

Written on behalf of Peter McSherry

The line between religious freedom and occupational heath and safety can be a blurry one, as evidenced in a recent Quebec Superior Court decision where three Sikh men (the employees) brought a claim against their employer who would not allow them to work without hard hats on.

A new policy and a refusal to comply

The employees were employed as truck drivers at the Port of Montreal. They sought an exemption to the hard hat obligation,, so they could wear turbans, when they were outside of their vehicles. The issue at the heart of the claim was whether their religious right to wear a turban precluded the application of safety standards at workplaces – specifically the wearing of hard hats.

While the employees spent only 5-6 minutes outside of their truck for every 35-40 minutes of driving, the Port’s rules required hard hats to be worn during those brief intervals. A 2004 Criminal Code amendment required workplaces to take reasonable steps to prevent bodily harm. The policy had been implemented in 2005 after a review of safety incidents in the workplace revealed 138 head injuries between 1998 and 2003. The Employees brought their claim in 2006.

Following the introduction of the policy, the Employer implemented an accommodation, which allowed Sikh truck drivers to stay in their trucks upon arrival at the Port. Instead of exiting their vehicles, the individuals subject to this exemption used cell phones to communicate with the office, who would then send another individual to perform the duties required outside of the truck. However, due to the nature of a busy workplace such as a port, wait times to have someone else help would often be10-20 minutes, and sometimes took up to two hours. The employees in question found that such a wait was not commercially viable, and stopped taking shipments to the Port. They filed a motion declaring their right to wear turbans, and only turbans, on their heads at work, was guaranteed by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms.

A rights violation, but one that is allowed

The Court agreed that the policy constituted a prima facie violation of the employees’ rights because of the difference it created between Sikh and non-Sikh employees. However, both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms allow for personal rights to be limited in certain circumstances.

Section 9.1 of the Quebec Charter of Rights and Freedoms states:

9.1   In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

Case law stemming from the Canadian Charter of Rights and Freedoms outlines two requirements to limit freedoms, being:

• The legislative objective must be of sufficient importance to warrant overriding a fundamental right (known as the “sufficiently important objective” test).
• The means chosen must be proportional to the said objective (known as the “proportionality” test).

The Court went on to find the employer’s accommodation policy satisfied both requirements. The first requirement was met because the hardhats were required to ensure the safety of employees when working outside at the Port of Montreal. The Court specifically noted “How can the defendants reasonably justify requiring that hard hats be worn by all workers in its terminals yet exempt the plaintiffs from this rule? The risks are no lesser because the plaintiffs are Sikh and wear turbans. The safety obligations incumbent on the defendants are also no less stringent towards them than they are towards all other workers.”

In regards to the second requirement, the Court held “the assurance of the safety of persons working at the defendants’ terminals – outweigh the prejudicial effects suffered by the plaintiffs, namely, the wearing of hard hats for the five to ten minutes they are walking around outside at the Port during a transport or, in the alternative, their decision to no longer transport containers to the terminals operated by the defendants.”

The Court ultimately dismissed the claim, though the employees have applied to have their case heard by the Quebec Court of Appeal. We continue to monitor developments in this ongoing matter and will post an update when one is available.

Peter McSherry focuses on individuals in employment law matters. With significant experience and resources, Peter McSherry can provide you with the advice you need if you have questions about your workplace rights under the Ontario Human Rights Code or the Canadian Human Rights Act. Call Peter McSherry at 519-821-5465 or contact him online to schedule a consultation.