Hair Today, Gone Tomorrow, Hired The Day After?
You may have seen this one in the papers last week. The Toronto Star profiled Allan Stokell, who was applying to be a UPS driver after he had retired as a City of Toronto employee, but UPS policy required he shave the beard he’s worn for the past 50 years.
Stokell refused, claiming that he identifies as a ‘bearded person.’ He noted that all his male ancestors have proudly worn beards, and that he believes the beard to be a sort of ‘creed,’ or at the very least a mark of his identity.
In disallowing the beard, UPS pointed to their employee policies, including policies on appearance and grooming. Those policies clearly state that, save for religious or medical circumstances, employees are not allowed to maintain any facial hair. In other words, Stokell is more than welcome to work for UPS, but the beard would have to go.
If you have any doubts about who’s right on this one, the answer is actually fairly simple. UPS has crafted their employee policy exactly as the law says that they should, complete with all the necessary human rights considerations in place.
As I’ve posted before, there are a series of enumerated (protected) grounds in the Ontario Human Rights Code (the “Code”) on which an employer cannot discriminate. They are:
- Ancestry, colour, race
- Ethnic origin
- Place of origin
- Family status
- Marital status (including single status)
- Gender identity, gender expression
- Receipt of public assistance (in housing only)
- Record of offences (in employment only)
- Sex (including pregnancy and breastfeeding)
- Sexual orientation.
For employers that fall under the federal regulations, the Canadian Human Rights Act, the protected grounds of discrimination are largely similar.
Hence the carve-out UPS has made for religious and medical accommodations. Not only does the employer have to consider the human rights of the individuals, but they actually have what is known as a ‘positive duty’ (or an obligation under the law) to protect those grounds to the point of reasonable hardship. In other words, they have to accommodate under those grounds and change their policies accordingly for individuals as much as they can within the parameters of the job.
This has of course lead to some interesting cases in recent decades as human rights law has expanded. In one noteworthy change from 2012, Khalsa Sikhs, who wear a ceremonial dagger called a kirpan, were permitted to wear their daggers into Ontario courts. There were conditions placed on the rules – the dagger must only be of a limited length, and the individual must identify that they are wearing the dagger and have it concealed in their wardrobe, but the point remains. While most individuals would never be allowed to bring a weapon of any sort into open court, Khalsa Sikhs are permitted to do under the Code as part of their religious observance.
So in this case, where there is no clear religious or medical reason for the Stokell’s facial hair, does his beard constitute a creed? Not currently, according to the Ontario Human Rights Commission, but that may change down the line. While the Code does not define ‘creed,’ the Ontario Human Rights Commission states “creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview, and way of life.” It further suggests that creeds are such deeply held beliefs that they govern one’s conduct, and can address ultimate questions like that of human existence.
So while the definition of creed may be a broad one, it’s clear enough that Stokell’s beard, while perhaps a point of personal pride, does not answer overarching questions of human existence. 'I Beard, Therefore I Am' may make for a great hipster t-shirt, but as a legal claim it stands flimsy at best.
For employers, it is absolutely imperative to get these workplace policies right, and a costly exercise when they’re not. While discrimination may be a fine line in some cases, in others it is much clearer, and the Ontario Human Rights Tribunal has fairly broad powers, including stiff financial penalties, in order to remedy a situation. A reasonable legal bill to have an employment lawyer review your workplace policy is a small price to pay to avoid a much heftier bill at the Tribunal.
For employees, one of the strongest points of Ontario’s human rights system is its accessibility, as individuals no longer need a lawyer in order to file a human rights complaint. That said, a lawyer can always help to review a matter beforehand, and even draft a complaint to make sure the strongest issues are put forth before the Tribunal. A lawyer may not be necessary when it comes to a human rights complaint, but it’s usually a good idea.
The bottom line is that while discriminatory employment policies may be a common problem, they simply do not exist in every case.
*Note: The cover photo is that of Johann Strauss II, the late Austrian composer and "the Waltz King." Neither historical figure is in any way related to the piece; I just liked their whiskers