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19 February 2020
There is a great societal debate following Quebec's National Assembly's recent adoption of the Act Respecting the Laicity of the State,(1) which regulates the wearing of religious symbols at the government level. The province's highest court contributed to the debate with its recent decision in Singh v Montréal Gateway Terminals Partnership,(2) which particularly affects federally regulated businesses.
In this case, freedom to wear religious symbols was pitted against employers' legal obligations to ensure and maintain occupational health and safety. The Quebec Court of Appeal affirmed a Superior Court judgment,(3) which held that occupational health and safety prevails over religious freedom, at least in this matter.
Three Sikh employees sued a third-party federally regulated employer for allegedly discriminating against them and infringing on their religious freedom by forcing them to wear a hard hat. The employees considered themselves unable to wear the hard hat due to the turbans that their Sikh faith required.
The three employees are truckers who, as part of their work, drive to Montreal port to pick up and deliver merchandise containers. After the federal government passed Bill C-21 in 2004 to amend the Criminal Code,(4) private employers under federal jurisdiction renting space in Montreal port were required to adopt a policy to comply with considerably stricter health and safety obligations.
This policy makes it mandatory for everyone, including employees and third parties, to wear a hard hat while circulating outside a building or vehicle. According to the employer, this is required due to the increased risk of head injuries at Montreal port.
The three Sikh employees claimed that the policy is discriminatory and infringed on their religious freedom, demanding that their employer accommodate them by allowing them not to wear a hard hat.
The trial judge explained the legal framework applicable to this complex case. Since relations between the Sikh employees and the federal employer are purely private, the Canadian Charter of Rights and Freedoms did not apply. However, although the employer is under federal jurisdiction, the Quebec Charter of Human Rights and Freedoms still applied as the remedy sought did not seriously infringe on the exercise of federal jurisdiction. Naturally, the Canadian Human Rights Act also applied.
After establishing the legal framework, the trial judge concluded that the employees had, on the face of it, demonstrated that they had suffered discrimination. But the analysis did not end there. Was the discrimination justified? Is protective headgear a justifiable occupational requirement? For the Superior Court, the answer is yes.
Indeed, it had been demonstrated that the obligation to wear protective headgear was adopted for a purpose that was rationally connected to the performance of the job in that it ensured the health and safety of employees and third parties circulating on the premises of Montreal port. This obligation had also been limited to time spent outside buildings and vehicles. The trial judge had no doubts as to the fact that the policy was implemented in good faith to ensure the health and safety of employees and third parties. As such, the trial judge concluded that the policy was reasonably necessary for the employer and that its absence would cause the employer undue hardship.
The Superior Court's analysis on this last point is interesting. It considers a temporary accommodation measure that had been implemented by the employer for three years allowing Sikh truckers not to wear hard hats if they remained inside their trucks at all times. However, this accommodation was rejected by the three employees as it lengthened wait times at Montreal port, and was finally abandoned by the employer due to its lack of economic and organisational viability.
The trial judge also reiterated that the duty to accommodate is not unilateral in such circumstances. Indeed, the three plaintiffs had to actively take part in the search for a solution. Having failed to collaborate during the implementation of the first accommodation measure, which was in place for three years, they could not now request another less restrictive measure for the employer that complied with occupational health and safety requirements.
In its judgment issued on 12 September 2019, the court of appeal fully endorsed the trial decision. The province's highest court stressed employees' duty to actively participate in the search for a solution with regard to accommodation. The court also reiterated the importance for employers to ensure the health and safety of their employees and third parties circulating on their premises. These obligations prevail over infringement on religious freedom, the adverse effects of which are only temporary and time limited in this case.
Ultimately, it is important to remember that the task of finding suitable means of accommodation does not lie solely with employers. Individuals claiming discrimination must actively participate in the search for a solution, which does not have to be perfect. Finally, employers should implement sound health and safety measures for employees and third parties, even if this may adversely affect certain individuals.
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