Balancing business interests with obligations under Ontario’s Human Rights Code [Code] has become increasingly challenging for organizations, as highlighted by the Human Rights Tribunal of Ontario’s (“HRTO”) decision in Zanette v Ottawa Chamber Music Society [Zanette]. In Zanette, the HRTO found that the organization did not discriminate against a volunteer by asking him to remove a symbol of support for the LGBTQ2S+ community from his name badge.
Background
In 2019, a volunteer at an annual music festival affixed a rainbow sticker to his name badge in support of the LGBTQ2S+ community. His manager instructed him to remove the sticker, as it did not comply with the dress code set out in the volunteer manual. While the volunteer complied and continued to work at the festival, he later filed a discrimination claim with the HRTO.
Decision
The HRTO dismissed the volunteer’s application, as he failed to establish that the festival discriminated against him.
The HRTO applied the test from by the Supreme Court of Canada’s decision in Moore v British Columbia (Education) to determine whether a prima facie case of discrimination existed. On a balance of probabilities, the volunteer had to establish that:
- he possessed a characteristic that is a protected ground under the Code;
- he suffered a disadvantage or an adverse impact; and
- his protected ground was “a factor” in the disadvantage or adverse impact.
The volunteer satisfied the first element of the test, as his membership in and advocacy for the LGBTQ2S+ community were clearly protected under the Code on the grounds of sexual orientation, gender identity, and gender expression. For the second element of the test, the volunteer demonstrated that his manager’s request to remove the sticker amounted to adverse treatment.
However, the HRTO held that the volunteer failed to prove the final element of the test, as the protected characteristics did not factor into the manager’s decision to ask him to remove the sticker. The HRTO recognized that all volunteers were prohibited from altering their name badges in order to protect the festival’s brand. Accordingly, the festival did not discriminate against the volunteer, either directly or through adverse effect, as the dress code:
- prohibited any alterations to name badges;
- applied to all volunteers; and
- was not arbitrarily enforced based on a Code-protected characteristic.
The HRTO found no evidence to suggest that the festival’s decision was motivated by anti-LGBTQ2S+ bias. Additionally, the HRTO determined that wearing a rainbow sticker is not an essential aspect of membership in the LGBTQ2S+ community. Therefore, the volunteer failed to establish prima facie discrimination, and his application was dismissed.
Takeaways
For employers, Zanette serves as a useful reminder of discrimination principles and considerations for workplace policies, including:
- Regularly Review Policies and Train Staff: Employers should regularly review their policies, including dress codes, to ensure they neither directly discriminate nor indirectly disadvantage groups protected by the Code. As the Code also protects volunteers, organizations should ensure their policies apply to the entire workforce, not just employees. Routinely training staff and managers on policies related to discrimination is also critical to mitigating risk.
- Assess Accommodation Obligations: Employers should be mindful that disputes similar to Zanette may trigger their duty to accommodate. If employees have a Code-protected characteristic, such as religion, that conflicts with workplace policies, employers cannot simply apply the policy uniformly. Instead, they must provide accommodation up to the point of undue hardship. For more information on the duty to accommodate, see our recent blog on Aguele v Family Options Inc.
- Consider Alternative Dispute Resolution: Nearly five years passed between the precipitating incident in Zanette and the HRTO’s decision. While administrative tribunals are intended to be expedient, such delays are unfortunately common. Where appropriate, organizations should consider alternative dispute resolution, such as mediation, to achieve a more timely resolution.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.