Can You Ask a Worker to Remove His Turban & Wear a Hardhat?

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Situation

A home improvement store requires workers to wear hardhats as mandated by OHS law. The store manager orders a security guard to obey the policy or leave the store. The guard, a practicing Sikh, explains that he can’t remove his turban for religious reasons. He points out other workers not wearing hardhats, including the manager himself. These comments annoy the manager, who tells the guard the situation will “come back at him” and orders him out of the building. The manager makes it clear that the guard can only return to work if he removes “that” and warns him that others who refused to obey the hardhat policy were fired. The guard sues the store and the manager for religious discrimination.

Question

Did the store and manager commit religious discrimination?

A. Yes, because any rule that requires a person to violate his religious beliefs is automatically discriminatory.
B. Yes, because the hardhat rule was selectively enforced.
C. No, because the hardhat rule was designed to ensure workers’ safety.
D. No, because OHS laws require workers to use appropriate head protection.

CLICK FOR ANSWER

Answer

B.  The store and manager committed religious discrimination by singling out the guard for enforcement of the hardhat rule.

Explanation

OHS laws require employers to ensure that workers use PPE necessary to protect them from job hazards. Human rights laws require employers to make reasonable adjustments to policies to accommodate workers’ religious preferences. This scenario, which is loosely based on a recent Ontario case, illustrates the interplay between PPE requirements and a worker’s religious rights.

The case would have been much harder to decide if the issue was about the validity of the hardhat rule itself. But the store in this case made life easy for the Ontario Human Rights Tribunal by applying the hardhat rule only to the Sikh guard. This selective enforcement undermined the argument that the hardhat rule was essential for safety and made the store and manager liable for discrimination. If the rule had been enforced consistently against all workers, the Tribunal would have had to decide whether the store had the right to make the worker violate his religious beliefs to ensure his safety.

Why Wrong Answers Are Wrong

A is wrong because safety rules that clash with religious practices aren’t always discriminatory. Such rules can still be justified if they’re considered a bona fide occupational requirement (BFOR), that is, they serve a legitimate purpose and are the least restrictive way to accomplish that purpose.

C is wrong because although safety is a legitimate purpose, the store would also have to prove that the rule was essential to accomplish the safety goal. And it’s all but impossible to show that a PPE rule is essential to safety when you don’t consistently apply it to all workers.

D is wrong because the OHS laws, in general, simply require workers who are at risk of a head injury to wear head protection. (However, in Ontario, the OHS laws do require all workers on construction projects to wear safety hats regardess of the risk of a head injury.) The question, thus, remains whether the store could have done something to eliminate the guard’s risk of a head injury without requiring him to remove his turban, such as, assigning him to a part of the store where hazards to workers’ heads aren’t present.

Show Your Lawyer

Loomba v. Home Depot Canada, [2010] HRTO 1434 (CanLII), June 29, 2010

Insider Says: For more information on PPE and religion, see “PPE & Religious Freedom: Drawing the Line Between Safety & Discrimination,” Oct. 2010, p. 1.