Canadian Employment Law Today

Ontario's new creed Changes to the Ontario Human Rights Commission's policy on creed mean even bigger changes for Ontario employers BY SUNIRA CHAUDHRI I f Sylvester Stallone's critically ac- claimed performance is the first thing you think of when you hear the word "creed," read on! On Dec. 10, 2015, the Ontario Human Rights Commission (OHRC) announced sweeping changes to the policy on creed in an updated policy on preventing discrimi - nation based on creed. e policy can be viewed online at http://www.ohrc.on.ca/ sites/default/files/Policy%20on%20prevent- ing%20discrimination%20based%20on%20 creed_accessible_0.pdf. is is the first time the policy on creed has been updated by the OHRC since 1996. e policy sets out a review of the histori - cal roots of discrimination based on creed in Canada, a new section on Indigenous creed practices, a plethora of examples of expressions of creed and how to accom - modate them, and, most significantly, an expanded definition of creed. Employers and employment lawyers alike should take heed of the new policy, given the broadened definition of creed which, in turn, creates a heightened sense of respon - sibility for employers along with greater exposure to liability if ignored. Section 1 of the Ontario Human Rights Code offers pro- tection from discrimination based on creed in five social areas including employment, contracts, unions and professional associa- tions (such as the Registered Nurses' Asso- ciation of Ontario, for example). According to the OHRC's "Summary of Human Rights and Creed survey findings" conducted in 2013, a majority of those sur - veyed (64 per cent) reported having expe- rienced discrimination based on creed. e survey also found that most creed-based discrimination reports take place in em- ployment settings. What is creed? Surprisingly, the code does not define the term. Our general un- derstanding of creed has, over time, largely been shaped by court and tribunal interpre- tations of the term. According to the new policy, the definition of creed has been ex- panded and includes religion, "broadly de- fined" and can include other non-religious belief systems that have some significant influence on a person's identity, worldview and way of life. e policy states "given the evolving nature of belief systems over time and the need to apply a liberal and purpo - sive interpretation to code protections for creed, this policy does not provide a univer- sal 'once and for all' definition of creed." Newer religions/creeds entitled to protection e policy provides that newer religions or creeds may be included on a case-by- case basis. For example, in Global Com- munications Ltd. V. C.E.P., Local 722-M, a labour arbitrator found that an employer should have accommodated its employ- ee, an editor of a television news sta- tion who followed the Rocky Mountain Mystery School belief system, by allow- ing time off to attend a pilgrimage to the Rocky Mountains. e pilgrimage was set to take place in Japan outside of the employee's vacation time. e arbitra- tor found that 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 belief needs only to be sincerely held. e focus is on a person's subjective and personal understanding of his creed. Beliefs need not be essential or even obligatory. In - dividuals are not even required to practice their creed in the same manner recognized by others belonging to the same creed. Un- der the policy, every individual is entitled to express his creed in a way that is meaningful to him. Questioning an employee's sincerity of belief Employers should take note that the policy cautions against asking about a person's sincerity of belief. is practice should be "as limited as possible" and only where there is a legitimate reason to doubt it. Renu Mandhane, the Ontario Human Rights Commissioner, says: "e main goal of the policy is to avoid having to actually go to formal dispute resolution but rather allowing a lens for both employers and em - ployees to understand their rights and ob- ligations. One of the clearest statements in the policy is that employers should take re- quests for accommodations 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 accommo - date bona fide, 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 needs to be only a factor in someone's dif - ferential treatment under the code. In Smith v. Network Technical Services Inc., an em- ployer dismissed an employee who declined to work Sundays due to his observance of the Christian Sabbath. e employer gave evidence that he fired the applicant because he had been "written up" four times in four months, and he was disrespectful and con - frontational in his meeting with him. e employer agreed, however, that the appli- cant's refusal to work Sundays also was a reason for the employee's termination. e tribunal found that the employer breached the code. e legal framework For prima facie (on its face) discrimina- tion on the basis of creed to be estab- lished, a person must show: • He has a characteristic protected from dis- crimination under the code (creed). • He has experienced negative treatment or an adverse impact within a social area pro- tected by the code. • e protected characteristic was a factor in HUMAN RIGHTS legislation offers protection for workers from discrimination in the course of employment based on several specific grounds. Many of these grounds are fairly obvious, but one that is a little more vague is the ground of creed. The Ontario Human Rights Commission has announced changes to its policy with regard to creed as a ground protected from discrimination — changes that offer a broader definition of the term and a better understanding of it. Employment lawyer Sunira Chaudhri fleshes out what these changes mean for employers and what they need to do to protect employee human rights with regards to creed. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: HUMAN RIGHTS

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