by Daniel Pugen
McCarthy Tetrault
Biometric hand scanners vs. religious beliefs: What does the law say?
In Canada, employers must accommodate their employees’ religious beliefs to the point of “undue hardship” for the employer. But what if you don’t consider an employee’s religious beliefs “mainstream”?
That doesn’t matter, according to a recent decision by an Ontario labor arbitrator.
Following on a Supreme Court of Canada ruling, the arbitrator ruled in 407 ETR Concession Co. and C.A.W.-Canada, local 414 that an employer must accommodate employees’ religious beliefs as long as they are “sincerely held.”
This important decision arises out of an employer’s attempt to implement a new security system that used a biometric hand scanner to identify employees. The arbitrator ruled that the employer failed to properly accommodate three employees who were dismissed for refusing to use the biometric scanners for religious reasons.
Scanners, beliefs at odds
The employer operated a toll highway in the Toronto area. Because of safety and security reasons — and the fact that the existing “swipe card” system was being abused — the employer introduced biometric hand scanners to control access to the workplace.
The scanners used infrared light to take an image of the employee’s hand from various angles. The scanner took 91 measurements of the hand’s length, width, thickness, and surface area.
Those measurements were then converted into a nine-digit algorithmic number that was stored in the biometric scanners’ memory. No image or picture of the employee’s hand was stored in the system, only the nine-digit number. Nobody knew the specific nine-digit number assigned to the employee.
Three employees of the Pentecostal faith believed that they were to avoid being “marked” (particularly on their forehead or right hand) by three sequential sixes (666), which they believed to be the “mark of the beast.”
Since the biometric scanners generated a nine-digit number for each employee’s hand, there was an off chance that the scanners could impose the mark of the beast, i.e., 666, on them and, as a consequence, they would risk damnation.
Arbitrator’s task
Were the employees’ beliefs protected under the Ontario Human Rights Code? That’s the question the arbitrator had to decide.
Somewhat reluctantly, the arbitrator followed the Supreme Court of Canada’s decision in Syndicat Northcrest v. Amselem. The majority of the court in that case found that an individual must only establish that his or her religious beliefs are “sincerely held” (a subjective determination), in order for those beliefs to be protected.
Since the employees’ beliefs in this case were also found to be “sincerely held,” the workers were entitled to protection against discrimination and to have their beliefs accommodated.
Accommodation to the point of undue hardship
As discussed in a previous Northern Exposure article, employers must accommodate disabled employees under the code up to the point of “undue hardship,” a tough standard to meet.
The employer in this case attempted to accommodate the employees by offering them options. They could:
- use their left hand rather than the right or
- wear tight-fitting gloves around their hands when using the biometric scanners so that the algorithm wouldn’t relate to their actual hand.
But the arbitrator found that those alternatives were also contrary to the employees’ sincere religious beliefs. Those beliefs prohibited the taking of any measurement of a body part that would be quantified by a number. The employees still were exposed to being unwittingly “marked” with the 666.
The arbitrator concluded that the employer failed to adequately explore all reasonable alternatives for accommodating the employees. Those should have included:
- methods of rearranging the workplace, scheduling, and accommodating the employees so that they wouldn’t have to pass their hands through the scanners to gain access to their own work areas;
- having supervisors accompany the employees while traveling in the workplace;
- moving office equipment so that the employees wouldn’t have to access areas protected by the hand scanners;
- having other employees meet the employees’ customers; or
- reverting back to “swipe cards” for these three employees.
The arbitrator found that the employees were discriminated against because of their religious beliefs. The arbitrator therefore reinstated the three employees with full back pay. He also ordered the company to work out an acceptable accommodation with the union and the employees.
Lessons for employers
This case sets out a clear test for determining whether an employee’s religious beliefs are protected against discrimination. A decisionmaker need only consider whether the employee’s beliefs are “sincerely held.” If so, the employee will be entitled to the protections of the code and to accommodation up to the point of undue hardship.
This case demonstrates that you must show you have considered all options for accommodating employees before resorting to dismissal. You should be able to show that you have properly investigated all options before asserting “undue hardship.”