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.

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  Sara Parchello, Partner, Bennett Jones
  Sara Parchello is a partner at Bennett Jones. She has an employment and labour focused legal practice, with considerable understanding of the retail, hospitality, and mining industries. She is a specialized resource for HR professionals and in-house counsel generalists to consult on employment-related issues, including drafting and enforcing restrictive covenants, human resources policy development, accommodation and disabilities, and advice on workplace harassment complaints and investigations. She also provides employment litigation services and labour arbitration in the provincial and federal sector. Sara is regularly engaged by clients to provide respect in the workplace training with a focus on employer obligations under the Occupational Health & Safety Act and the Human Rights Code