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Recently, the Ontario Human Rights Commission released its Policy on preventing discrimination based on creed, updating their previous creed-related policy from 1996. Like other recent Commission policies on topics such as gender identity/expression and family status, the Policy provides clarity on the definition of the ground, while also providing guidance for employers on specific situations in which creed-related issues might arise in the workplace.
While creed has often been treated as synonymous with religion, the Policy notes that in addition to religious systems of belief, creed “may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life.” The Policy provides guidance for determining whether a belief system amounts to a creed, by noting that a creed:
- Is sincerely, freely and deeply held
- Is integrally linked to a person’s identity, self-definition and fulfilment
- Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
- Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
- Has some “nexus” or connection to an organization or community that professes a shared system of belief
This open-ended definition has already led to an unexpected assertion of veganism being a creed, although that claim has not yet been linked to a particular complaint before the Human Rights Tribunal of Ontario. While the Tribunal or other decision-makers might ultimately disagree that veganism meets the definition, it’s clear that creed can no longer be limited to a shortlist of established world religions.
Although the Policy does not specifically list examples of non-religious belief systems that would meet the definition of creed, it seems at least conceivable that a vegan’s request for an alternate uniform not made out of leather, a discrimination complaint from an individual terminated for holding communist beliefs, or a harassment complaint from an environmentalist being mocked at work for their ‘green’ practices might meet the test.
After reviewing the general protections against discrimination and harassment based on creed, and the duty to accommodate creed-related beliefs and practices, the Policy goes on to discuss some specific accommodation situations and provide guidance on how an employer should proceed. Noting that the principles of dignity, individualization, integration and full participation should guide attempts to accommodate employees based on creed, the Policy considers numerous examples, including both religious accommodation claims that are relatively straight-forward:
A car dealer operates seven days a week and requires its employees to be available to work weekend hours, which are its busiest and most profitable business days. The requirement adversely affects Christian and Jewish employees with a creed that prohibits work on Sabbath days, which fall on the weekend. The business has a duty to accommodate these employees to the point of undue hardship.
And those that are arguably more nuanced:
A college had previously accommodated a Jewish teacher by scheduling his classes after 1:00 p.m. to enable him to teach a morning computer class at a local Jewish high school. The college withdrew this accommodation after it introduced a new automated scheduling system. The teacher grieved the decision claiming that the college had failed in its duty to accommodate his sincerely held religious belief that he must give back to his community which, he argued, was fulfilled by teaching at a Jewish high school. The grievance board noted that while a subjective test is required to determine the existence of a religious belief, “it was necessary to apply an objective test to determine if the religious belief had been infringed.” Noting that there are many ways in which the grievor could fulfill his obligation to give back to his community,” the board held that it was not the requirement to give back that was infringed but the teacher’s particular choice of how to fulfill it. The employer was not required to accommodate this.
While the Policy (which is non-binding on the Human Rights Tribunal of Ontario and other decision-makers, but which can have persuasive value) does not create any new obligations for employers, it does shed light on concepts and concerns of which not all employers might be aware. For example, the Policy discusses “faithism” in an interesting way, defining it as an ideology that ascribes negative characteristics and values to individuals based on their creed. In addition to noting that faithism can result in people of the Islamic faith being labelled as terrorists, a phenomenon with which we are increasingly familiar, it notes that it can also lead to the assumption that someone’s religious faith necessarily means that they’re close-minded or disrespectful of diversity.
If you are an employer that employs a diverse workforce, a review of the complete Policy is highly recommended. Additional topics covered in the Policy, such as prayer observances, attendance requirements, dress codes, and religious displays, may provide you with specific guidance on how to address your employee concerns. If history is any indication, the release of the Policy will likely lead to a spike in claims related to the ground of creed, and as such a proactive review of the contents of the Policy might leave you in a better position to respond to your employees in an informed and timely manner.
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.