As workplaces become increasingly diverse, claims of “conflicting rights” appear to be on the rise as well. Often when there is a conflict of rights, one of the conflicting claims is grounded in creed – where an employee raises a religious objection to performing a particular job-related function. For example, many people recall the 2012 complaint of a female patron of a barber shop who was denied a haircut by the barber shop staff, all of whom were Muslim and therefore prohibited by their religion to touch a female who was not a member of their family. The complaint involved a conflict between the complainant’s right to freedom from discrimination in services because of her sex and the employees’ right to religious accommodation in employment.

One challenge for employers in such circumstances is to understand to what degree they can explore the basis of their employee’s religious objection. When a creed-based request for accommodation is raised, must the employer accept it at face value or can they ask questions to explore whether the request truly engages the protection of the Code? Although the barber shop case settled, preventing us from a Tribunal decision on that matter, a recent Tribunal decision gives employers some guidance on how they might explore these matters in their own workplaces.

In Clipperton-Boyer v RedFlagDeals.com 2014 HRTO 1796, Tribunal Vice-Chair Mark Hart considered a complaint of discrimination in services based on creed, the facts of which he described as follows:

In brief, the issue in this case relates to an avatar that the applicant uses when he is posting messages to the respondent’s website, which is a “Christ fish” and (except for a very brief period of time) included the words “Jesus Christ, God’s Son, Saviour” underneath. He has been asked by the respondent to stop using this avatar because it is religious in nature and contrary to the respondent’s Forum Rules (which expressly prohibit potentially controversial content, including religious and political threads).

Mr. Clipperton-Boyer had been using the Christ fish avatar since 2007 or 2008 and in July 2011, he was asked to remove it by the website’s Community Manager following a complaint by another user. Mr. Clipperton-Boyer refused to remove the fish, asserting his right under the Code not to be subjected to discrimination because of creed. A series of complaints from other users followed and in 2014, Mr. Clipperton-Boyer’s avatar was removed from the website.

The Tribunal characterized the issue as follows:

The issue for me to determine is whether the applicant’s use of the Christ fish avatar engages the protection under the Code against discrimination because of creed. As the jurisprudence makes clear, it is not every personal manifestation of an individual’s creed that is capable of engaging the Code’s protection. Rather, the Code’s protection against religious discrimination is circumscribed to cover only certain significant aspects of an individual’s religious beliefs or practices.

After reviewing the Supreme Court of Canada decision in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 the Tribunal concluded that “in order the engage the protection of the Ontario Code against discrimination because of creed, an applicant must demonstrate that he or she sincerely believes that a certain practice or belief is experientially religious in nature in that it is either:

1. objectively required by the religion, or
2. that he or she subjectively believes that it is required by the religion, or
3. that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion.”

Given that the use of a Christ fish avatar could not be seen as objectively required by his religion, nor did Mr. Clipperton-Boyer subjectively believe that it was required, the Tribunal analysis focused on the third factor.

In his evidence, Mr. Clipperton-Boyer stated that his use of the Christ fish avatar brought him “a little spark of faith” and would remind him of his faith, adding that ‘“it was a little tweak in my heart” and that it made him feel good and brought him closer to God each day.’

In light of this evidence, the Tribunal concluded:

While I certainly acknowledge and respect the sincerity of the applicant’s feelings about his use of the avatar, I find that it cannot reasonably be said that his use of this avatar engenders the kind of personal, subjective connection to the divine or to the subject or object of the applicant’s spiritual faith that is required to engage the applicant’s rights under the Code…It is simply a personal and outward display of one’s religious beliefs that may make the person feel good and remind them of their faith, but does not engender any profound or deep connection to the divine.

The applicant’s use of the Christ fish avatar is not rooted in any religious belief or practice, but is rather a personal desire to outwardly manifest his religious faith. While that may be significant and important to the applicant personally, it is not sufficient to engage the protection of the Code.

While the facts of this case are likely different than the typical issues facing employers relating to creed, it is nonetheless a helpful reminder to employers that they are within their rights to explore the creed-related claims of their employees and to ask those employees to demonstrate that a practice or belief is either a requirement of their religion or that it engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith. Where an employee cannot demonstrate this, what at first appears to be a conflict of rights might in fact be a conflict between a right and a personal desire.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.