You may recall that, in February of last year, we wrote about a case, Saadi v. Audmax Inc. (2009 HRTO 1627), which involved a Canadian-born Muslim female who claimed that her employer had discriminated against her based on her ancestry and ethnic origin when they enforced an office dress code and microwave policy. Last year, the Ontario Human Rights Tribunal agreed that Ms. Saadi had been discriminated against, however Audmax recently appealed to the Ontario Divisional Court and the Court overturned the Tribunal‟s decision.

With respect to the dress code, you‟ll recall that Audmax had verbally reprimanded Ms. Saadi concerning her work attire. During a disciplinary meeting, Audmax told her that her clothing was inappropriate, citing the dress code which explicitly required the wearing of “business attire” at all times. Ms. Saadi complained that the company had discriminated against her on the basis of her race and religion when it disciplined her for violating the dress code policy, and the Tribunal agreed.

However, upon review, the Court held that it was not clear that the requirement that an employee wear “business attire” was in conflict with a religious requirement to dress modestly. The Court held that the Tribunal should have considered whether the dress code or its enforcement conflicted with what Ms. Saadi was required to wear as part of her religion.

As an example, although Audmax did not object to Ms. Saadi wearing a hijab to work for the first six weeks of her employment, they took issue with a non-traditional style of hijab that Ms. Saadi wore on one occasion. Audmax felt that the style of hijab, which was described as a "cap‟, was unprofessional and raised their concern with Ms. Saadi. The Tribunal found that Ms. Saadi‟s right to choose the form of hijab she wore was protected and therefore found that she had experienced discrimination. However, the Court held that there was nothing about Ms. Saadi's religion that required her to wear that particular style of hijab. If it was possible for her to wear a hijab that was consistent with both the dress code and her religion – as she had for the first six weeks of her employment – then Ms. Saadi's sense of style, not her religious rights, were affected.

The microwave policy restricted reheating foods with a strong odour or foods that could affect people with seafood or peanut allergies. The Court pointed out that, on the day that Ms. Saadi was disciplined for heating food which left a strong smell, she was not heating food that was tied to her ethnic origin or ancestry. In fact, she was microwaving food that had been given to her by a co-worker who was originally from Tunisia. Therefore, the Court held that the enforcement of the microwave policy was not connected to Ms. Saadi's ethnic origin or ancestry. Specifically, the Court could not understand how the ethnicity and ancestral rights of a Bengali-Canadian Muslim were adversely affected by being prevented from reheating somebody else's Tunisian food.

In the end, the Tribunal's decision was set aside and the case was remitted back to the Tribunal for a new hearing before a

different arbitrator.

What does this mean for employers?

1. Encourage employees to provide feedback on issues that they may have in complying with a policy.

Providing employees with this opportunity will allow them to identify early on if they

feel that the policy unfairly discriminates against them in some way.

2. If an employee is in violation of a workplace policy, ask if there is a reason.

The answer to this question may provide insight into any accommodation that an employee may require.

3. Employers may have an ability to challenge an employee’s statement that a particular policy violates their human rights.

Employees are entitled to “reasonable” accommodation. If there is a way to comply with the policy which does not infringe on the employee's rights, then the employer may be able to hold the employee to the policy, and not indulge the employee's “preference”. However, in this regard, employers should tread carefully to avoid legal liability, and may wish to seek the guidance of employment counsel before taking a firm position.