Northern Exposure

A Shaved Head and Microwave Food Policy — Human Rights Violations?

By Sara Parchello

It’s amazing the issues that pop up in front of human rights tribunals across Canada. Recently, the Manitoba Human Rights Commission was asked whether it is discriminatory to fire an employee for shaving her head. On an equally interesting level, the Ontario Human Rights Tribunal was asked whether it is discriminatory to discipline an employee for microwaving food that created an odor unpleasant to other employees. Do either of these scenarios constitute a human rights violation? Not surprisingly, the answer is “it depends.”

But it was for a good cause
In the Manitoba case, a waitress shaved her head to support her uncle, who was battling cancer. After she showed up to work with the shaved head, her boss told her that her new look didn’t comply with the restaurant’s dress code. The employer also told her not to return to work.

The employee filed a complaint with the Manitoba Human Rights Commission. In her view, if a man could shave his head and not be fired, she also should be able to shave her head (and not be fired for it). The Manitoba Human Rights Commission disagreed — and refused to grant the employee a hearing on the basis that she shaved her head voluntarily.

While the commission’s decision seems correct, it’s easy to imagine a different set of facts that may not be so clear-cut. What if the employee was undergoing chemotherapy and had lost all  her hair? What if the employee shaved her head in support of a nationally sanctioned cancer fundraiser? What if the employee shaved her head because it was a religious obligation?

As with all potential human rights issues, the “why” is everything. Employers have to be careful to consider the “why” behind an employee’s actions. Equally important, an employer must be able to explain the “why” behind its own actions, particularly if it seeks to rely on a workplace policy to discipline an employee.

But it smells good to me
In Saadi v. Audmax, Ms. Saadi, a Bengali-Canadian, Muslim woman, was fired after a long and varied series of disputes with her employer. One of the disputes related to Ms. Saadi microwaving food with an ethnically identifiable odor.

In firing Ms. Saadi, her employer relied on its “Health and Safety Concerns” policy — which focused on environmental sensitivity in the office. It stated the following:

Please refrain from or strictly limit the use of scented deodorants, perfumes, colognes, shampoos.

Due to food allergies and odour from some food, please refrain from or strictly limit the use of the Microwave [sic] for foods that present same. The most commonly reported of these types of reactions have occurred as a result of seafood-allergic people inhaling odors [sic] from cooking or reheating certain foods.

Although the policy had been updated, it had not materially changed.

The Ontario Human Rights Tribunal said  that although the purpose of the policy was valid (i.e., that staff be sensitive to odors of certain foods), the policy failed to provide any specific guidance about which certain foods were inappropriate. This finding turned out to be problematic for the employer.

Quoting from the British Columbia Human Rights Tribunal’s decision in Chauhan v. Norkam Seniors Housing Cooperative Assn., the tribunal recognized that the preparation of cooked foods in one’s home is an expression of ethnicity and ancestry. As such, a policy permitting the heating of some foods but not others, without adequate clarity about what constitutes acceptable ingredients and without providing a discernable rationale for the rule, may be discriminatory.  The application of such a loose policy was discriminatory, in the tribunal’s view.

Luckily for the employer, that was not the end of the issue. A month ago, the Ontario Divisional Court overturned the tribunal’s decision. One of the problems with the tribunal’s decision, in the court’s view, was that Saadi was microwaving food that had been given to her by a coworker from Tunisia. The court could not conclude that the ethnicity and ancestral rights of a Bengali-Canadian Muslim were adversely affected by her being prevented from reheating somebody else’s Tunisian food.

Advice for employers
Despite the employer ultimately being successful in both these cases, Canadian employers should still think about how best to draft and implement workplace policies — and how to ensure that they do not fun afoul of human rights legislation. When implementing policies, ensure that:

  • the workplace policy makes sense for your workplace;
  • employees are given proper notice of a new workplace policy, or a change in a workplace policy;
  • the workplace policy — and the reasons for it — are explained to employees;
  • employees receive a copy of the workplace policy, and an acknowledgment that they have received, reviewed, and understand it;
  • there is a process for an employee to provide feedback on a workplace policy; and
  • there is a process for the employer to evaluate and tweak the policy on an individualized basis, when there are human rights issues.

1 thought on “A Shaved Head and Microwave Food Policy — Human Rights Violations?”

  1. Hello Sara,

    I have just read your great article about the recent case of Audmax Inc. v. Ontario Human Rights Tribunal, 2011 and thought that since the inception of this case to its closure last month, I have not had a chance to speak out and or up except through the outcomes of the case in the media.

    I am ready to start a new realm of Employer rights, policies and advocacy for small business owners like myself and others who call me quite often once they are taken to the OHR for trivial reasons.

    Now that the election is over we must start the ball a-rolling especially for small business owners.

    Small businesses are the economic engine of any modern economy. “Small businesses make up for 70% of job growth in Ontario” (The newly appointed federal government SME manager at the SME fair Wednesday September 21, 2011) , yet in Ontario it seems to be the small businesses that are in the crosshairs of the Human Rights Tribunal (HRT).

    Daily, I receive calls from more and more small businesses that have been brought to the Human Rights Tribunal by former employees. In reality, this means more companies that cannot afford a $50 000 – $100, 000 retainer fee for good representation. Yet another small business whose name is dragged through the mud because of a disgruntled employee and a system that does not ask the right questions before passing judgement. Yet another company taken down, with no real method in sight to deal with this tribunal.

    As a visible racial minority woman, a single mother and who is taking care of a bed ridden mother with a son studying Engineering who was also dragged into the HRT court and had to take out student loan while I borrow $100,000 on my house (that once belonged to Ms Saadi) to fight the wrongs of HRT, I would like to see a support system for those who have been done wrong and for those who will be.

    I would also like to see changes to the methods used by the HRT, the lack of an independent investigation for finding of facts, the procedures for admitting evidence and the lack of accountability in their decision making, which have actually done much more harm than good.

    In other words, Ontario has tarnished its own track record ( the many international responses to my case) on protecting Human Rights. We as Ontarians have taken several steps backwards with respect to integrating and managing our diverse society. This is a big issue facing the people of Ontario and how they will go about interacting with each other.

    As the Global Compact Principles suggest that while businesses cannot be moral authori­ties, they are moral agents. The Universal Declaration of Human Rights in 1948 called on “every organ of society” to play their role. Eleanor Roosevelt went still further when she addressed the United Nations General Assembly in Paris on 10 December 1948, calling on all of us to remember all the “small places”:

    “Where, after all, do universal human rights begin? In small places, close to home–so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he [she] lives in; the school or college he [she] attends; the factory, farm, or office where he [she] works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.

    Deborah Gyapong writes: Unbelievable. Thank God this awful decision was overturned Abolish these tribunals and commissions. The sooner the better. They are an assault on our civil rights. I hope this is an issue in the next Ontario election – I am making it a post election issue

    For the past 17 years while many sit at home and enjoy holiday events I am in my office trying to find the next innovate ideal idea to ensure new comers, single mothers and youth get food clothing and shelter yet I am taken to Human Rights. Today Thanksgiving day is no different.

    Today is the new solution to change. Why not let us ………


    Maxcine Telfer, founder and managing director Audmax Inc.

Leave a Reply

Your email address will not be published. Required fields are marked *