HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Browne
Applicant
-and-
Sudbury Integrated Nickel Operations, A Glencore Company (Smelter Division)
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Browne v. Sudbury Integrated Nickel Operations
APPEARANCES
Christopher Browne, Applicant
Self-represented
Sudbury Integrated Nickel Operations, A Glencore Company (Smelter Division), Respondent
Samantha Seabrook, Counsel
1This is an Application filed on April 1, 2014 and completed on June 3, 2014, alleging discrimination with respect to employment because of gender expression and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The preliminary issues to be decided in this case are: (1) whether a man’s decision to grow a particular type of facial hair is capable of being protected under the Code on the basis of gender expression or sex; and (2) whether the applicant’s reprisal allegation has a reasonable prospect of success.
Underlying Facts
3The underlying facts relevant to this preliminary issue can be stated quite succinctly. The respondent runs a mining, milling and smelting operation in Sudbury. The respondent’s smelter division processes nickel concentrate into nickel matte. The applicant has been employed by the respondent for over 19 years. For the past 12 years, he has held the position of Converter Aisle Crane Operator in the respondent’s smelter complex.
4All employees who work in the smelting plant are required to be fitted for and carry an approved respirator mask, and certain tasks, including those performed by the applicant, require the wearing of a respirator mask to protect from potential exposure to sulphur dioxide gas as well as fumes or dust carrying a variety of metals and silica.
5For those employees required to use a respirator mask, the respondent has a “clean shaven policy” that prohibits the wearing of beards that may interfere with the fit of the respirator mask. Not all forms of facial hair are prohibited by this policy. For example, a neatly trimmed mustache or a “soul patch” are not prohibited, as these forms of facial hair do not interfere with mask fit.
6In the spring of 2014, in part due to a recent Ministry of Labour inspection, the respondent’s management decided that it needed to “re-set” expectations regarding compliance with the “clean shaven policy”. As a result, meetings were held with the affected employees to advise them that, effective April 1, 2014, the “clean shaven policy” would be strictly enforced. Employees were informed that they could seek accommodation to exempt them from the application of this policy, for example for religious or medical reasons, although accommodation could result in the employee not being able to perform duties that required the wearing of a respirator mask.
7At the time, in the spring of 2014, the applicant was wearing a mustache and goatee that did not conform with the “clean shaven policy”, as his goatee went down to and along his jaw line. The applicant’s wearing of facial hair has been intermittent over the years. He testified that he sporadically wore a goatee when he was in college, but thereafter was clean shaven for a number of years. He testified that in early October 2012, he decided to grow a mustache and a goatee as a means of expressing his support for the Movember movement, where men grow facial hair in the month of November each year to express their support for men suffering from prostate cancer. The applicant testified that he was moved to do this as a result of the impact of prostate cancer on members of his family.
8When questioned as to why he could not simply wear a mustache and/or soul patch in conformance with the “clean shaven policy” as a means of expressing his support for the Movember movement, the applicant’s response was that he had tried wearing just a mustache when he was in college, and that it just did not look right on him. He testified that he had never worn a soul patch.
9The applicant attended a meeting on March 25, 2014 at which management advised employees of its intention to strictly enforce the “clean shaven policy” as of April 1, 2014. There appears to be no dispute that, at this meeting, the applicant and other employees were informed that a failure to comply with the “clean shaven policy” as of April 1, 2014 would result in discipline. There also appears to be no dispute that the applicant and other employees were informed of their right to request accommodation, although the applicant’s evidence is that the respondent indicated that accommodation was restricted to religious or medical reasons.
10There is no dispute that the applicant did not request accommodation. However, his position is that the respondent’s “clean shaven policy” as a whole is discriminatory on the basis of gender expression, and so he does not believe that it was necessary for him to make an accommodation request. That, of course, is one of the principal issues to be addressed in this decision.
11There is a significant dispute between the parties as to whether the “clean shaven policy” constitutes a reasonable and bona fide occupational requirement. The respondent relies upon Canadian Standards Association guidelines and gave notice of its intention to call expert evidence to support its position that the “clean shaven policy” is required for health and safety reasons in order to ensure proper fit of the respirator mask. The applicant takes the position that these health and safety concerns can be appropriately addressed by performing what is called a “fit test” on an individual basis to ensure that the mask is providing the proper protection, notwithstanding the presence of facial hair that does not comply with the “clean shaven policy”. This factual dispute, however, only becomes relevant if the applicant is able to establish that the wearing of facial hair is protected under the Code. It is only if that is established that the respondent would be required to bring forward evidence to establish the affirmative defence that the policy was a reasonable and bona fide occupational requirement. Accordingly, for the purpose of deciding the preliminary issues before me, it is not necessary for me to address the issue of the respondent’s potential defence.
12The applicant’s claim of reprisal is based upon the threat of potential discipline for failure to comply with the “clean shaven policy” as of April 1, 2014, as well as an interaction he had with a member of the respondent’s management following the meeting on March 25, 2014. He states that he was asked whether he intended to comply with the policy as of April 2, 2014, which was his first shift back following the date on which the company had indicated that the “clean shaven policy” would be strictly enforced. The applicant replied by stating that he likely would not comply with the policy, on the basis of his view that it was discriminatory. He states that he agreed with management that he was a leadership figure among employees, due to his prior involvement with the union, and was encouraged to “re-think” his actions on the basis that other employees might follow his lead. The applicant testified that he understood this to mean that it would be on his conscience if other employees followed his lead by refusing to comply with the policy and were disciplined.
13In the end, the applicant did shave off his mustache and goatee by the time he arrived for work on April 2, 2014, and so he was not disciplined. However, his position is that the threat of discipline by management if he did not comply with what he regarded and had raised as a discriminatory policy amounts to reprisal in violation of the Code.
Preliminary Hearing
14This matter was scheduled to proceed to a hearing on October 13 and 14, 2015. On October 8, 2015, I issued a Case Assessment Direction (“CAD”) converting October 13, 2015 into a preliminary hearing to hear any evidence and submissions from the parties on the issue of whether the impact of the respondent’s “clean shaven policy” on the applicant is capable of amounting either to discrimination against the applicant on the basis of gender expression or sex. While the applicant had not relied on the ground of “sex” in his Application, I nonetheless indicated in the CAD that I was prepared to consider whether his allegations were capable of falling within the scope of that protection. The October 14, 2015 hearing day was cancelled.
15In the CAD, I indicated that the applicant would be afforded an opportunity to call evidence relevant to this preliminary issue. I expressed my expectation that, if he called any evidence on this preliminary issue, it would only be his own evidence to explain why this Tribunal should find that his choice of facial hair falls within the scope of the protections under the grounds of either gender expression or sex. I indicated in the CAD that, if the applicant decided to testify on his own behalf on this issue, the respondent would be afforded an opportunity for cross-examination. I also indicated in the CAD that I did not expect to hear from any respondent witnesses on this preliminary issue.
16In addition, in the CAD, I stated that I was aware from the Application that the applicant also is alleging reprisal. I expressed my understanding that the alleged threat of reprisal was on the basis that, after the applicant raised with management that the “clean shaven policy” raised a potential human rights issue, he was told that the consequences of not complying with that policy could include the imposition of discipline. As a result, in the CAD I stated that, for the purpose of the preliminary hearing, I wanted to hear submissions from the parties as to whether the applicant’s reprisal allegation has a reasonable prospect of success.
17In the CAD, I stated that I was aware from the materials filed that the parties are seeking to rely upon extensive and detailed witness evidence regarding the issue of whether the respondent’s policy represents a reasonable and bona fide occupational requirement for health and safety reasons. I stated in the CAD that I did not intend to hear or consider any of that evidence at this stage of the proceeding. Rather, I indicated that I intended to focus the hearing day on October 13, 2015 solely on the preliminary issues identified above, after which I would determine those issues prior to hearing any further evidence in this matter.
18The preliminary hearing proceeded in Sudbury on October 13, 2015. I heard evidence from the applicant relevant to the preliminary issues, and he was then cross-examined by respondent counsel. I then heard the parties’ submissions on the preliminary issues.
19For the purpose of this decision, I have considered the Ontario Human Rights Commission’s Policy on Preventing Discrimination because of Gender Identity and Gender Expression approved January 31, 2014 (the “Commission Policy”), as well as Hansard, case law and other materials filed by the parties for the purpose of the preliminary hearing.
Can the “clean shaven policy” amount to discrimination because of sex?
20I appreciate that the applicant did not allege discrimination because of sex when he filed his Application. However, in my view, it is important to consider the issue of whether the “clean shaven policy” is capable of amounting to discrimination against the applicant because of sex, if only to provide a backdrop for consideration of the issue of whether this policy is capable of amounting to discrimination because of “gender expression”, particularly since sex has been a protected ground under the Code since 1972 while “gender expression” was only added as a protected ground in 2012 and has not yet been extensively considered in the case law.
21The issue of whether a facial hair policy amounts to sex discrimination under human rights legislation in Canada was the subject of an epic battle in Manitoba between Canada Safeway and the union representing its employees which lasted quite literally for decades and has been the subject of numerous grievances and at least one human rights complaint.
22In brief, Canada Safeway has had a “no beards” policy since 1929. The policy prohibits Canada Safeway employees who interact with the public from wearing a beard. This policy was implemented on the basis that the company wished to maintain high grooming and appearance standards for its employees, and believed that having clean shaven employees provided the company with a competitive advantage over its competitors. The company also relied on certain surveys it had conducted, which it felt indicated a customer preference for clean shaven employees.
23In 1983, a human rights complaint challenging the Canada Safeway policy proceeded to a Board of Adjudication (“Board”) appointed under the Manitoba Human Rights Act: see Manitoba Food and Commercial Workers Union v. Canada Safeway, 1983 CanLII 4700 (MB HRC), 4 CHRR D/1495. After hearing and considering extensive evidence and submissions, the Board found that the Canada Safeway policy constituted discrimination because of sex on the basis that it represented an unwarranted and permanent intrusion that imposed a burden on men that extended into their social existence off the job. The Board further held that the policy did not constitute a reasonable occupational qualification on the basis that the policy was based on customer preference, as opposed to employee safety or consumer health.
24The Board of Adjudication’s decision was appealed to the Manitoba Court of Queen’s Bench and was overturned: see Canada Safeway Ltd. v. Steel, 1984 CanLII 2949 (MB QB), 27 ManR(2d) 79, 5 CHRR D/366. Although the Board of Adjudication’s decision was overturned, the Court nonetheless upheld the Board’s finding that the “no beards” policy amounted to discrimination because of sex. However, the Court then went on to find that the policy was a reasonable occupational qualification.
25The matter was then appealed to the Manitoba Court of Appeal: see Canada Safeway Ltd. v. Steel, 1984 CanLII 2980 (MB CA), 29 ManR(2d) 154, 1984 CanLII 120 (SCC), 6 CHRR D/2831. In one of the shortest appellate decisions I have seen, the Court of Appeal stated unequivocally: “A ‘no beard’ policy is a grooming policy applicable to employees and is definitely not a matter of sexual discrimination.” The appeal, therefore, was dismissed. Leave to appeal to the Supreme Court of Canada was sought and denied: Manitoba Human Rights Commission v. Canada Safeway Ltd., [1985] SCCA No. 243; 58 NR 311.
26The finding of the Manitoba Court of Appeal did receive further consideration by the Supreme Court of Canada in a subsequent case involving Canada Safeway, namely Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 SCR 1219 (“Brooks”). The Brooks decision is famous for reversing the Supreme Court’s prior decision in Bliss v. Attorney General of Canada, 1978 CanLII 25 (SCC), [1979] 1 SCR 183 and finding that the exclusion of pregnant women from an employer’s group insurance plan for a 17 week period during the course of the pregnancy and after birth amounted to discrimination because of sex.
27As part of Canada Safeway’s argument in the Brooks case, it was contended that there was an analogy to be drawn between the finding that a “no beards” policy was not discrimination because of sex and the exclusion of pregnant women under the group insurance policy. The company argued that, while beards are peculiar to men as pregnancy is peculiar to women, not all men grow beards and not all women become pregnant. As a result, it was argued, since a “no beards” policy was not sex discrimination, so too the exclusion of pregnant women could not be regarded as sex discrimination.
28This argument was readily dismissed by Dickson C.J., who stated (at pp. 1249-50):
I cannot find any useful analogy between a company rule denying men the right to wear beards and an accident and sickness insurance plan which discriminates against female employees who become pregnant. The attempt to draw an analogy at best trivializes the procreative and socially vital function of women and seeks to elevate the growing of facial hair to a constitutional right.
29The saga was not, however, quite finished. In 1998, the union proceeded to arbitration with a policy grievance once again challenging Canada Safeway’s “no beard” policy on a number of grounds, including an argument that the policy was illegal because it discriminates against men because of sex in violation of the Manitoba Human Rights Code. While this argument was clearly at odds with the decision of the Manitoba Court of Appeal on this very issue, the union argued that the conclusion drawn by the Court of Appeal was no longer valid given the developments in the law regarding the meaning of, and approach to finding, discrimination.
30This argument was soundly rejected by the arbitrator: see Canada Safeway Ltd. v. U.F.C.W., Local 1518, 1998 CanLII 30143 (BC LA), 74 LAC(4th) 306. While the arbitrator recognized that a personal characteristic does not need to be “immutable” in order to fall within the protection of human rights legislation, he held that discrimination on the basis of a protected personal characteristic nonetheless must be grounded in a matter of social import and worthy of legislative protection. As stated by the arbitrator (at paras. 91 and 98):
Like religion or citizenship, pregnancy is not a choice that can be reversed, or not made, without significant personal and social costs, or without potential violation to the dignity and freedom of the persons involved. The same cannot be said of the choice of male employees to wear a beard. Wearing a beard is a matter of style or grooming. While men may feel strongly about the freedom to grow beards, their conviction alone does not make the issue one of social import and worthy of legislative protection.
The “no beards” policy may indeed be considered burdensome. It potentially limits personal choices regarding grooming. However, it does not impose a burden or obligation that is not imposed upon female employees in a manner that has any significance within the meaning and purpose of the Human Rights Code. Women do not have any unfair advantages as a result of the “no beards” policy. Male employees are not disadvantaged within the purpose and meaning of the Human Rights Code by not being able to wear a beard.
31I appreciate that a decision by the Manitoba Court of Appeal, while entitled to due consideration, is not binding upon me or any Ontario court or tribunal. I also appreciate that the denial of leave to appeal by the Supreme Court of Canada does not amount to a binding adoption by that Court of the appellate decision from which leave to appeal was denied. Nor is a decision by a labour arbitrator binding upon this Tribunal.
32However, it appears clear to me from the Brooks decision that the Supreme Court of Canada has endorsed the result reached by the Manitoba Court of Appeal on the basis that the growing of facial hair cannot be elevated to a right protected under human rights legislation, absent any connection to the growing of facial hair as a matter of religious observance or perhaps to some protected ground other than sex. In my view, this ruling by the Supreme Court of Canada is binding upon me and is determinative of the issue that the respondent’s “clean shaven policy” cannot be regarded as amounting to discrimination because of sex.
33Even if I am incorrect in finding that I am bound by the Supreme Court of Canada’s consideration of this issue in the Brooks decision, I agree with and adopt the views expressed by the Supreme Court of Canada, the Manitoba Court of Appeal and the labour arbitrator that wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation, once again absent any connection to a matter of religious observance or perhaps a different protected ground other than sex.
Has the amendment of the Code to add “gender expression” changed this conclusion?
34As stated above, the Code was amended in 2012 to add “gender identity” and “gender expression” as protected grounds through legislation known as Toby’s Act. The purpose of adding these grounds to the Code was to address a perceived gap in the protection afforded to transgendered or other gender non-conforming persons. I say that this was a “perceived” gap in the Code on the basis that the Commission in 2000 had taken the position that gender identity was already covered under the protected ground of sex, and the case law of this and other human rights tribunals already had recognized that discrimination against a person because they are transgendered or gender non-conforming was prohibited by the Code: see XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 and the cases cited at para. 88. However, there was some uncertainty as to the appropriate protected ground to rely upon and there was not yet clear judicial consideration of this issue. As a result, Toby’s Law received the support of all parties in the Legislature to ensure beyond any doubt that the rights of transgendered and other gender non-conforming persons were protected under the Code.
35That it was the Legislature’s intention to ensure the protection of the rights of transgendered and gender non-conforming persons by enacting Toby’s Law is abundantly clear from a review of Hansard and the legislative debates on this Act. In particular, repeated emphasis was placed on the severe social, economic and historical disadvantage experienced by this community. This severe disadvantage is reflected in the Commission’s Policy, which also states: “The grounds [of gender identity and gender expression added as a result of Toby’s Act] make it clear that trans people and other gender non-conforming individuals are entitled to legal protections in the same way that people are protected from discrimination and harassment based on race, age, disability and all other prohibited grounds.”
36There is no dispute that the applicant is not a transgendered or gender non-conforming person, but rather is “cisgendered” (or gender conforming); in other words, the applicant is someone who self-identifes as male (gender) and was also born as a man (sex).
37The issue for me to consider is whether the ground of “gender expression” added as a result of Toby’s Act should be interpreted to protect the right of cisgendered men to wear beards. In my view, it should not.
38I am well aware of the fundamental approach to the interpretation of human rights legislation, and that it should be given such fair, large and liberal interpretation as will best ensure that its objects are attained, and that I should not search for ways and means to minimize these rights or enfeeble their proper impact: see Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 SCR 1114 at p. 1134.
39However, in my view, interpreting “gender expression” broadly to extend protection to the right of men to grow beards would do violence to the important and fundamental purposes sought to be achieved by human rights legislation. There is nothing to indicate that bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.
40Further, in my view, I properly should have regard to the clear case law pre-existing the amendment to the Code, in which the Supreme Court of Canada, a provincial appellate court and a labour arbitrator had concluded that the wearing of a beard was an appearance and grooming issue that did not constitute sex discrimination and was not worthy of human rights protection. In my view, the reasons and basis for this conclusion, as discussed above, apply equally to the issue of whether the wearing of a beard by a cisgendered man is protected under the ground of “gender expression”.
41I am aware that the Commission’s Policy defines “gender expression” as being “how a person publicly expresses or presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice.” While the vast majority of the Commission’s Policy is clearly directed at the rights afforded to transgendered and gender non-conforming individuals, there are some specific suggestions in the Policy that the ground of “gender expression” may extend beyond this community.
42The specific examples cited in the Commission’s Policy where the ground of “gender expression” may extend beyond the protection of transgendered and gender non-conforming persons arise out of factual circumstances that are very different from those in the instant case. Whether or not the ground of “gender expression” applies in the types of factual circumstances referenced in the Commission Policy, or whether these circumstances are already covered by other protected grounds, is a matter for consideration at a later time in the appropriate context. However, nowhere in the Commission Policy is any position taken that the ground of “gender expression” extends to protect the ability of cisgendered men to grow beards, nor is any suggestion made that the Legislature intended to reverse the clear guidance on this matter provided by the Supreme Court of Canada and the Manitoba Court of Appeal.
43As a result, I find that the addition of the ground of “gender expression” under the Code does not protect the ability of cisgendered men to grow beards and is not capable of supporting the applicant’s argument that the respondent’s “clean shaven policy” amounts to discrimination against him because of gender expression.
Does the applicant’s reprisal allegation have a reasonable prospect of success?
44The applicant’s allegation is that the threat of discipline for failure to comply with the respondent’s “clean shaven policy” amounts to a threat of reprisal within the meaning of s. 8 of the Code. I disagree.
45The right protected under s. 8 of the Code relevant to this proceeding is the applicant’s right “to claim and enforce his . . . rights under this Act . . . without reprisal or threat of reprisal for so doing”. In order to establish a violation of this provision, the applicant needs to prove not just that he was in jeopardy of experiencing a negative or adverse consequence, such as potential discipline, but that the threat of discipline was made because he claimed his rights under the Code.
46The applicant’s evidence before me indicates that at the meeting on March 25, 2014 and in his subsequent discussion with a member of the respondent’s management, he clearly (although incorrectly) claimed his Code rights in relation to the “clean shaven policy”. The fact that the applicant ultimately turned out to be incorrect in claiming that his Code rights had been violated does not necessarily preclude an ability to raise an allegation of reprisal. As stated in Noble v. York University, 2010 HRTO 878 at para. 30, “an individual need not prove that their rights have in fact been infringed to claim protection of section 8”: see also Correia v. York Catholic District School Board, 2011 HRTO 1733 at para. 89. However, the claim of reprisal nonetheless must be based on an allegation that some adverse action was taken or threatened because of the claim of Code rights.
47Even on the applicant’s own evidence, the prospect of potential discipline was not raised by the respondent because the applicant claimed his Code rights, but rather was raised in the event that the applicant failed to comply with the “clean shaven policy” which I have found not to be in violation of the Code. The issue raised by the applicant as reprisal is the same as, and indistinguishable from, the issue already addressed in this Decision: namely whether the “clean shaven policy” violated his rights under the Code. The fact that the applicant may have faced discipline if he failed to comply with that policy does not serve to create a separate potential violation of the Code under the rubric of reprisal.
48As a result, I find that the applicant’s allegation of reprisal has no reasonable prospect of success.
ORDER
49For all of the foregoing reasons, the Application is dismissed.
Dated at Toronto, this 14th day of January, 2016.
“Signed by”
Mark Hart
Vice-chair