OHS laws require employers to ensure that workers use necessary PPE in the workplace. Human rights laws require employers to accommodate the religious preferences of their workers. In most cases, these two obligations are perfectly compatible. But they come into conflict when the worker objects to using PPE on religious grounds.

Recent ON Case on Hardhats & Turbans

The Ontario Human Rights Tribunal was recently faced with this issue. A security guard at a Home Depot store under construction was a practicing Sikh and wore a turban. During a shift, an assistant store manager told that guard that if he was going to work there, he had to wear a hardhat. The guard said that he couldn’t remove his turban for religious reasons. They had a tense discussion of about 15 minutes about the hardhat rule and safety. The guard pointed out other workers who weren’t wearing hardhats, including one wearing a baseball hat. This observation annoyed the manager, who told the guard the situation “would come back at him” and ordered him out of the building. The manager made it clear that the guard could only work if he removed “that” and said others who’d refused to do so had been fired.

The guard sued the store and the manager for religious discrimination. The Tribunal found that store and manager discriminated against the guard by selectively enforcing the hardhat rule against him. The evidence indicated that there was no “systematic or official” enforcement of the PPE rule upon admission to the site. In fact, during the incident in question, there were other people present—including the manager—who weren’t wearing hardhats. But only the guard was ordered to leave the building because he wasn’t complying with the hardhat rule. The Tribunal concluded that “this differential treatment arose because the [guard] wore a turban, which is inextricably linked to his adherence to and practice of his Sikh religion.”

It also ruled that the manager’s derogatory comments and conduct in relation to the guard’s turban and refusal to wear a hardhat constituted discriminatory treatment based on his religion [Loomba v. Home Depot Canada, [2010] HRTO 1434 (CanLII), June 29, 2010].

It’s important to note that the Tribunal deferred the question of the interplay between the Human Right Code’s protections and the duty to accommodate and the OHS Act’s safety requirements for a separate hearing. So the issues of whether the store’s hardhat rule was a “bona fide occupational requirement” and whether it satisfied the duty to accommodate the guard are still unresolved.

What’s an Employer to Do?

OHSInsider will soon be running an article that will show you how to resolve these kinds of dilemmas. We’ll explain the relationship between your PPE-related duties under the OHS laws and your obligation to accommodate a worker’s religious preferences under human rights laws and how to fulfill one set of obligations without violating the other.