There are several grounds for discrimination that are protected under human rights legislation. Most people are familiar with several of them and what they mean. “Creed” is one that doesn’t come up as much, but it is protected and employers can’t legally discriminate against an employee’s creed — or set of beliefs and values. But what qualifies as someone’s creed to the extent that those beliefs are protected against discrimination? How far do employers have to go to respect those beliefs?
Every one of us has a personal identity shaped by a set of beliefs and values that defines who we are as individuals. For some, that might include their religion. For others, it could be a particular practice that guides their daily routines, career and lifestyle choices.
For an increasing number of Canadians, those beliefs and values might include dietary preferences such as ethical veganism — a vegetarian diet that excludes dairy and eggs, based on the premise that the practitioner will not consume food (or any products, for that matter) derived from animals. For those who adhere to this belief system, dietary decisions are a daily and fundamental part of their lives, in some cases shaping everything from their choice of restaurants to the clothes they wear.
Some staunch adherents might deem ethical veganism a fundamental aspect of their personal “creed.” Others would argue that food preferences are merely a lifestyle choice.
That debate has gained import in the wake of a 2016 decision to update and expand the definition of creed, which is a protected ground under Ontario’s Human Rights Code. As you may know, the other grounds include:
• Ethnic origin
• Family status
• Gender Identity/Expression
• Marital Status (married, single, widowed, divorced, separated or living in a conjugal relationship outside of marriage, whether in a same-sex or opposite-sex relationship)
• Place of Origin
• Receipt of public assistance (in housing only)
• Record of offences (in employment only)
• Sex (including sexual harassment, pregnancy and breastfeeding)
• Sexual orientation
While employers have always been required to acknowledge and accommodate a worker’s self-professed creed — even if they find it objectionable, believe the practice causes them inconvenience, or impacts workplace morale — with its broadened definition, the Ontario Human Rights Commission (OHRC) explained that:
“Creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life. The following characteristics are relevant when considering if a belief system is a creed under the code. A creed:
• Is sincerely, freely and deeply held
• Is integrally linked to a person’s identity, self-definition and fulfilment
• Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
• Addresses 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
• Has some “nexus” or connection to an organization or community that professes a shared system of belief.
This a very broad definition that opens the door to wide-ranging interpretation. For employers, the expanded notion of a creed — which seems to include a much wider grouping of spiritual and ethical beliefs — has created widespread uncertainty as to the extent of accommodations that may be required in the workplace, and their implications, should an employee push the boundaries of that definition. What, employers wonder, are the outer limits of what a personal creed might be? We’re about to find out.
Vegan firefighter filed complaint
In May 2019, Ontario firefighter Adam Knauff filed a human rights complaint against his employer, the Ministry of Natural Resources and Forestry, for not accommodating his requests for vegan food while fighting a forest fire in British Columbia in 2017.
“The Ontario Ministry of Natural Resources and Forestry discriminated against me and failed to accommodate my sincerely held ethical beliefs (creed) when it failed to provide me with food that accommodated my personal commitment to ethical veganism, and then disciplined me and suspended me because I attempted to assert my right to accommodation of that sincerely held ethical belief,” he claimed.
According to Knauff, he made repeated requests for vegan fare, and he was promised nutritionally adequate food, only to be disappointed at meal times. After getting into verbal confrontations with the camp chef — in one instance for handling beef and vegan burger patties with the same unwashed hands — and, later, his supervisor, Knauff was suspended and eventually sent home to Ontario.
The Ministry countered that it did work to meet Knauff’s nutritional needs and, at any rate, ethical veganism does not meet the legal definition of a creed. But what does?
As the OHRC’s expanded definition underscores, the potential for varying interpretations of a creed has opened a veritable Pandora’s box that could give business owners, managers and HR practitioners headaches for years to come. That’s at a time when many organizations are already struggling to meet their ever-widening human rights compliance obligations. Most genuinely work to comply, but they don’t know where to begin or become mired in the relative complexity of understanding case law and addressing legislative requirements.
If the OHRC were to rule in Knauff’s favour in the precedent-setting case, it’s not inconceivable that employers would be required to supply vegan meals in workplace cafeterias and take other actions, such as eschewing animal-based materials such as leather in employee uniforms.
Broad expectations for accommodation
Accommodation expectations are broad in Ontario. Employers are required to accommodate to the point of undue hardship, a high threshold typically defined as the point at which said accommodation has a sufficiently negative material impact on their business that it could threaten its continued successful operation, or at which said accommodation has a sufficiently negative impact on health and safety. In other words, even if the accommodative act incurs a cost or inconvenience to the employer, it may not be deemed unreasonable unless the cost is such that it would prevent the business from continuing to operate. If the accommodation request conflicts with an accepted workplace standard or practice, employers may still be required to take efforts to accommodate to the best of their abilities. However, if the necessary accommodation would compromise health and safety, the employer likely would not be required to implement the accommodation.
If an organization employed an individual who identified as a bodybuilder and whose life outside the workplace was defined by a strict weightlifting and nutrition regimen and who requested accommodation to suit that lifestyle, would an employer need to take action? What about a devoted yoga practitioner whose spiritual beliefs deemed it necessary to make time to practice during the workday? These may sound like ludicrous hypotheticals, but with such a broad definition, we won’t fully know the answer until the OHRC issues a ruling in the Knauff case, as well as other creed-related human rights complaints that are sure to emerge in the years ahead.
The good news is this: Even though the OHRC’s move to expand the creed definition has created potential risk exposures for employers, the odds of legions of employees suddenly making overly challenging accommodation requests are slim. However, there could be some such requests. As a best practice, employers should think proactively and take efforts to set policies around employee accommodation in their workplace policy manuals. In most cases, accommodation can be an easy process that can help position an organization as a generous, compassionate and understanding employer of choice. If an employee needs a vegan option in a corporate dining hall, making sure that one is available is a relatively easily fulfilled request.
In the meantime, we’ll wait to see if ethical veganism qualifies as a creed and whether a rethinking of accommodation practices is on the menu for Ontario employers.
Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or firstname.lastname@example.org.
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