INTRODUCTION

In Ontario, employees have the right to be free from discrimination and harassment on the basis of “creed”. Employees are afforded this right by section 5 of the Ontario Human Rights Code (the “Code”).

The Ontario Human Rights Commission (the “Commission”) recently released a 173-page policy that provides insight into creed-based rights. The policy is entitled “Policy on preventing discrimination based on creed”, and it replaces the 19-page policy that was previously issued in 1996. Both policies can be accessed on the Commission’s website by clicking here.

Understanding “Creed”

What is a “creed”? When are creed-based rights engaged by an employee’s beliefs and practices?

The Code does not explicitly define the term “creed”; however, the term has been interpreted broadly to encompass more than religious belief systems. The Commission has noted in its new policy that the following questions are relevant when assessing whether a belief system is a “creed” under the Code:

  • Is the belief system “sincerely, freely and deeply held”?
  • Is the belief system “integrally linked to a person’s self-definition and spiritual fulfilment”?
  • Is the belief system “a particular, comprehensive and overarching system of belief that governs one’s conduct and practices”?
  • Does the belief system address “ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence”?
  • Does the belief system have “some ‘nexus’ or connection to an organization or community that professes a shared system of belief”?

The breadth of the term “creed” is exemplified by a relatively recent case where an employee was a follower of the Rocky Mountain Mystery School belief system. The employer in that case was found to have violated the employee’s creed-based rights when it denied her requests for time off work to attend a pilgrimage to the Rocky Mountains. To read the full decision in that case, see Communications, Energy and Paperworkers Union of Canada Local 722-M v Global Communications (2010), 195 LAC (4th) 217 (Levinson).

Given the complex and personal nature of creed-based rights, the Commission’s new policy is a useful resource for employers to consult when assessing whether creed-based rights are triggered under the Code.

Common Scenarios

Creed-based discrimination can arise in various forms. As noted in the Commission’s new policy, creed-based discrimination can arise when:

  • a job candidate is profiled based on his or her creed;
  • an employee is treated differentially and unfairly in employment due to his or her creed;
  • a requirement, rule or standard prevents an employee from practicing his or her creed;
  • an employee is forced or pressured to do or believe something based on creed; or
  • harassment or a poisoned work-environment results from creed-based comments.

The new policy also discusses specific scenarios that commonly arise in the workplace, such as:

  • creed issues in recruitment and hiring;
  • dress codes and appearance standards;
  • creed-based holidays, leaves and ritual observances;
  • photos and biometrics;
  • displays of religious or creed-based symbols; and
  • exemptions from activities that adversely affect a person’s creed.

Strategies to Comply with the Code

Employers have the ultimate responsibility of ensuring that their workplaces are free from discrimination and harassment.

In light of that responsibility, the Commission has emphasized that organizations should develop strategies to prevent and address creed-based discrimination. As noted in the Commission’s new policy, a complete strategy should include the following components:

  • a barrier prevention, review and removal plan;
  • anti-discrimination and anti-harassment policies;
  • an education and training program to increase cultural competence regarding creed diversity;
  • a procedure for internal complaints; and
  • an accommodation policy and procedure.

By implementing the above components, employers are able to reduce the risk of violating the Code while promoting a positive and inclusive workplace for its employees.