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7 C.H.R.R. ND/1 (1986)

handle is hein.journals/chhr7 and id is 1 raw text is: CANADIAN HUMAN RIGHTS REPORTER NEW DEVELOPMENTS January, 1986 CASES OF NOTE BFOQ Determined in Relation to Occupation Generally In a split decision, the Supreme Court of Canada has ruled that K.S. Bhinder was not discriminated against when he was required by his employer, CN Rail, to wear a hard hat. K.S. Bhinder is a member of the Sikh religion which requires him to wear a turban and no other head covering. His employment was ter- minated when he refused to wear a hard hat. The majority of the Court found that the hard hat requirement is a bona fide occupational requirement, and the special circumstances of an individual should not be taken into account once it is established that an employment rule is a bona fide occupational require- ment. There is no duty to accommodate where there is a bona fide occupational requirement. The Court repeated its finding in O'Malley v. Simpsons-Sears Ltd. that it is not necessary to show an intention to discriminate in order for there to be a violation of human rights legislation. Although the hard hat rule was imposed in good faith and not in order to discriminate against members of the Sikh reli- gion, the rule nonetheless has a discriminatory effect on members of the Sikh religion. The hard hat rule is saved, however, because it is a bona fide occupational requirement. Dickson C.J. and Lamer J., dissenting, found that section 14(a) of the Canadian Human Rights Act, the bona fide occupational requirement provision, was not intended to obliterate the duty to accommodate. A requirement which has the effect of discriminating against an individual is not bona fide within the mean- ing of section 14(a) unless not imposing it would create an undue hardship on an employer. In addition, Dickson and Lamer JJ. found that fed- eral legislation is inoperative to the extent that it con- flicts with the Canadian Human Rights Act. The fact that the wearing of safety helmets is provided for in the Canada Labour Code does not mean that the Labour Code provisions create an exception to the Canadian Human Rights Act. On the contrary, the wearing of hard hats by Sikhs, because of its discriminatory effect, is governed by the Canadian Human Rights Act. (See Decision 488) Discrimination Proved by Effects, Not Intention The Supreme Court of Canada has allowed an appeal by the Ontario Human Rights Commission and Theresa O'Malley from the Ontario Court of Appeal ruling which found that O'Malley was not discriminated against because of her religion when her full-time employment was terminated because she refused to work Friday evenings and Saturdays. O'Malley's reli- gion (Seventh-Day Adventist) required strict observ- ance of the Sabbath from sundown Friday to sundown Saturday. The Supreme Court of Canada, in a unani- mous judgment, found that O'Malley was discrimi- nated against because of creed. The Court held that it is not necessary to prove that discrimination was intentional to find that a violation of human rights legislation has occurred. An employ- ment rule, neutral on its face and honestly made, can have discriminatory effects. It is the result or the effect of an act which is important in determining whether discrimination has occurred. The Court also held that, where an employment rule has a discriminatory effect, an employer has a duty to take reasonable steps to accommodate the employee unless accommodation creates an undue hardship for the employer. In O'Malley's case, the employment rule that all employees must work Friday evenings and Saturdays on a rotation basis had a discriminatory effect because of her religion. The employer did not show that accommodating O'Malley would have created an undue hardship. The Court found that the onus of proving that accom- modation will result in undue hardship is on the em- ployer since the information is in the employer's pos- session and the employee is not likely to be able to prove that there is no undue hardship. Simpsons-Sears Limited was ordered to pay O'Mal- ley compensation for wages lost due to discrimination. (See Decision 489) ND/I Volume 7, C.H.R.R.

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