Last week, a group of 500 Sikh truck drivers in Canada threatened to file a complaint with the Ontario Human Rights Commission in an attempt to challenge a "hard hat" policy instituted by the Canadian Pacific Railways (CPR) . The policy, as described in a company memo:
Please be advised that as per CPR's Safety Policy, all drivers required to enter CPR property as well as customer locations are required to wear a hard hat. There are no exceptions to this policy.In objecting to this policy, a large group of Sikhs noted that there had been no injuries justifying the hart hat rule and that Sikhs even served in the British Army with turbans.
We understand that this might be a concern for some drivers who are required to wear turbans as part of their religious doctrine… There is zero tolerance at CPR with regards to this requirement.
A Canadian human rights commission found that a Sikh had been discriminated against in a similar situation, however the Supreme Court of Canada, in Bhinder v. Canadian National Railways, 1985 CarswellNat 144, 9 C.C.E.L. 135 (S.C.C.), overturned the decision, ruling that employers do not infringe upon human rights law when they ban Sikhs from wearing turbans on the job "for genuine business reasons." The court continued:
The hard hat rule did not lose its character as a bona fide occupational requirement solely because it had the effect of discriminating against (Bhinder) … once established as a bona fide occupational requirement for employees in (CN’s) coach yard, the hard hat rule was not a discriminatory practice within the meaning of the act, despite its affect on (Bhinder.)
Reports are now surfacing that CPR has "agreed to negotiate with the drivers over the wearing of turbans versus hard hats." Accordingly, the "Sikh truck drivers will not file a complaint." Hopefully an amicable settlement can be reached between the two sides.
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Anonymous [At 1:55 AM]:
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Post a CommentIt's not surprising that CPR has opted for negotiation. The zero tolerance policy against turbanned employees probably wouldn't withstand a Charter challenge as outlined in the Bhinder case [198s] 2 SC.R. 561.
In Bhinder, the Canadian Supreme Court found that forcing an employee to wear a hard hat infringed his right to freedom of religion under s.2(a) of the Charter of Rights and Freedoms.
It then considered whether this discrimination was justified as a reasonable limit in a free and democratic society. Was the employer's policy:
1. necessary to fulfill the job's requirements?
2. developed and imposed honestly and in good faith?, &
3. reasonably necessary to ensure effective performance of the work and/or safety of the workers and the public?
The test boils down to the following issue.
Is discrimination justified as a bona fide occupational requirement? e.g. so that the employer has adopted the rule for genuine business purposes to reduce the risk of injury.
The court ruled that based on Bhinder's functions the railway was justified in requiring hard hats.
In the CPR scenario, the 500 or so employees are truck drivers. Their need to replace the turban with a hard hat when entering any CPR premises, including customer areas, is less convincing than in Bhinder.
The Charter's freedom of expression and religion provisions can apply also in non employment cases. A possible example was reported on Sept. 4 of The Gazette, p. A10.
"Vancouver--Gurinder Dhah spent yesterday in a hotel instead of playing in a soccer tournament after a referee asked the teen to remove his turban before a match on Saturday. Dhah, a practising Sikh, refused. His outraged team refused to play and walked off the field. Dhah's team, from Calgary, had travelled from Alberta especially for the Labour Day tournament."
The fact that the referee singled out Dhah suggests that discrimination is at play rather than dominant safety concern. Dhah was singled out although there is no tournament requirement for specific head gear (including helmets). I guess since helmets aren't mandatory, then Dhah shouldn't be obliged to wear a baseball cap even if that were suggested as a compromise. More importantly, Dhah didn't have any other option than to leave the match. He was wearing a patka which is the most basic Sikh head covering. In other words, he was doing the maximum to accommodate any justified legal policy against the use of turbans IF such a policy indeed had been in place. The referee's refusal to accept the patka leaves Dhah with the other choice for removing the patka. That consideration is for Dhah to cut his hair. Dhah's Charter right to freedom of religion makes this an unacceptable option.
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