Canadian HR Reporter

CANADIAN HR REPORTER February 8, 2016 EMPLOYMENT LAW 5 RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM Ontario Human Rights Commission makes important changes to creed policy With broader defi nition, employers face greater responsibility and exposure to liability On Dec. 10, 2015, the Ontario Human Rights Commission (OHRC) announced sweep- ing changes to the policy on creed in an updated policy on preventing discrimi- nation based on creed. is is the fi rst time the policy has been updated by the OHRC since 1996. e policy sets out a review of the historical roots of discrimina- tion based on creed in Canada, a new section on indigenous creed practices, a plethora of examples of expressions of creed and how to accommodate them and, most signifi cantly, an expanded defi ni- tion of creed. Employers and employment lawyers alike should take heed of the new policy, given the broad- ened defi nition of creed which creates a heightened sense of re- sponsibility for employers along with greater exposure to liability. Section 1 of the Ontario Hu- man Rights Code off ers protec- tion from discrimination based on creed in fi ve social areas including employment, contracts, unions and professional associations (such as the Registered Nurses' Association of Ontario). Almost two-thirds (64 per cent) of people said they had experi- enced discrimination based on creed, according to a 2013 survey of 1,719 people by the OHRC. The survey also found most creed-based discrimination re- ports take place in employment settings. What is creed? Surprisingly, the code does not defi ne the term. The general understanding of creed has, over time, largely been shaped by court and tribunal in- terpretations of the term. With the new policy, the defi - nition of creed has been expand- ed and includes religion, "broadly defi ned," and other non-religious belief systems that have some sig- nifi cant infl uence on a person's identity, worldview and way of life. The policy says "given the evolving nature of belief systems over time and the need to apply a liberal and purposive interpreta- tion to code protections for creed, this policy does not provide a uni- versal, 'once and for all' defi nition of creed." e policy provides that newer religions or creeds may be in- cluded on a case-by-case basis. For example, in Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications (2010), a labour arbitrator found that an employer should have accommodated its employee, an editor of a TV news station, who followed the Rocky Mountain Mystery School belief system by allowing time off to at- tend a pilgrimage. e pilgrimage was set to take place outside of the employee's vacation time. The arbitrator found the work obligation was a substantial infringement on her religious freedom. is may appear to be a case of extremes, but it isn't. e code provides that a person's creed be- lief needs only to be sincerely held. e focus is on a person's subjec- tive and personal understanding of his creed. Beliefs need not be essential or even obligatory. Individuals are not even required to practise their creed in the same manner recog- nized by others belonging to the same creed. Under the policy, every individ- ual is entitled to express his creed in a way that is meaningful to him. Questioning sincerity of belief Employers should take note the policy cautions against asking about a person's sincerity of be- lief. is practice should be "as limited as possible" and only where there is a legitimate reason to doubt it. " e main goal of the policy is to avoid having to actually go to formal dispute resolution but rather allowing a lens for both em- ployers and employees to under- stand their rights and obligations," said Renu Mandhane, Ontario hu- man rights commissioner. "One of the clearest statements in the policy is that employers should take requests for accom- modations based on creed at face value unless there is good reason to believe that the request is being made in bad faith. Employers are expected to accommodate bona fi de, creed-related needs to the point of undue hardship. " is new policy is likely a more inclusive interpretation of creed. e fact that it is more inclusive doesn't make it unworkable to apply." e policy also emphasizes the fact that even if other legitimate factors exist, creed need only be a factor in someone's diff eren- tial treatment under the code. In Smith v. Network Technical Services Inc., for example, the employer dismissed an employee who declined to work Sundays UNDERSTAND > pg. 17 On Dec. 10, 2015, the Ontario Human Rights Commission (OHRC) announced sweep- ing changes to the policy on creed in an updated policy on preventing discrimi- nation based on creed. is is the fi rst time the policy has been updated by the Sunira Chaudhri LEGAL VIEW "Given the evolving nature of belief systems... this policy does not provide a universal, 'once and for all' defi nition."

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