According to section 5 of the Ontario Human Rights Code, every person has a right to equal treatment with respect to employment without discrimination because of creed. In addition, every person who is an employee has a right to freedom from harassment in the workplace by the employer or their agent or another employee because of creed.
The Code is a quasi-constitutional statute that has primacy over other Ontario laws, unless the other law says otherwise. For this reason, it is important for employers to understand their legal obligations under the Code and for employees to understand what rights they have as an employee or potential employee with respect to employment.
The Ontario Human Rights Commission publishes policies that provide guidance on interpreting provisions of the Code. This is especially helpful considering that certain terms, such as “creed,” are not defined in the Code. The OHRC published its first Policy on creed in 1996; however, on recognizing that creed-based beliefs and practices evolve over time, as do forms of discrimination based on creed, it decided it was time for an update. Following a consultation process that began in 2011, the OHRC’s new policy based on creed was approved on Sept. 17, 2015.
All employers in Ontario are responsible for maintaining an environment free from discrimination and harassment. The policy aims to help employers understand and meet their legal obligations under the Code, in order to prevent and address discrimination and harassment based on creed. Even though this policy is not law, the Human Rights Tribunal of Ontario considers it to be, at the very least, highly persuasive.
The OHRC provides a working definition of creed in its policy. It says that a creed:
- Is sincerely, freely and deeply held;
- Is integrally linked to a person’s identity, self-definition and fulfilment;
- Is a particular and comprehensive overarching system of belief that governs one’s conduct and practices;
- Addresses ultimate questions of human existence, including ideas about life, purpose, death and the existence or non-existence of a creator and/or a higher or different order of existence;
- Has some “nexus” or connection to an organization or community that professes a shared system of belief.
During the consultation process for this new policy, representatives of Animal Justice, a federally incorporated not-for-profit dedicated to advocating for the humane treatment of animals, discussed how secular beliefs such as ethical veganism equally deserve legal protections as a form of creed. The OHRC listened.
Historically linked to religious beliefs and practices, the policy has broadened the scope of creed to include “non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life.”
Ethical veganism is a topic that has been gaining momentum as more individuals refuse to eat animal-based diets or utilize products derived from animal exploitation. These refusals are often rooted in a person’s belief that animals need not be hurt or exploited in order for humans to remain happy and healthy.
Notwithstanding the fact that the rights tribunal has not officially ruled as to whether ethical veganism is a protected human right pursuant to one’s creed, it seems only a matter of time until such a finding is made. For this reason, it is incumbent on employers to ensure that any existing or new standard, rule or requirement in their organization does not discriminate, either directly or indirectly, against their employees or potential employees.
Employers need to ensure that those in their organization who practise ethical veganism are not the target of unwanted jokes, comments or insults as a result of their creed-related beliefs and practices. Furthermore, what is likely no longer considered acceptable includes requiring all employees to wear a uniform made of fur or leather, or not having vegan options during a work event where employees are invited to attend, such as a Christmas party or an annual fundraiser. Note that there are, of course, exceptions to every rule. Where an employer has a standard, rule or requirement that adversely affects an employee or potential employee’s beliefs and practices connected to a creed, the employer is legally required to accommodate these beliefs and practices to the point of undue hardship. While inconvenience is not a relevant excuse, factors such as cost and health and safety must be considered. For purposes of accommodation, and especially given that creed means different things to different people, organizations should do the following: accept in good faith that a person practises a creed, unless there is a real and significant reason to believe otherwise; limit its request for information to only what is required for accommodation purposes; and ensure that information remains confidential.
It is important for everyone to know the Supreme Court of Canada has confirmed that there exists no hierarchy of rights and that creed deserves the same consideration, protection and respect as other human rights.
Karine Dion is an associate lawyer with the Ottawa law firm of Nelligan O’Brien Payne LLP (www.nelliganlaw.ca) and a member of the Labour and Employment Practice Group.
[This article originally appeared in the March 4, 2016 issue of The Lawyers Weekly.]
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