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Feb 08, 2016 Industry News To Shave or not to Shave! Mining Issue? 4 MIN READ

Clean-shaven policy not discrimination, human rights tribunal rules

Ben Leeson

The Sudbury Star

Sudbury Integrated Nickel Operations did not violate a longtime employee’s right to gender expression by requiring him to shave his moustache and goatee, according to a decision by the Human Rights Tribunal of Ontario.

Christopher Browne, an employee in the smelter division, filed an application to the tribunal in April 2014, alleging that strict enforcement of the company’s clean-shaven policy amounted to discrimination on the basis of gender expression.

But adjudicator Mark Hart, in a decision dated Jan. 14, ruled the ground of gender identity and gender expression, added to the Ontario Human Rights Code in 2012 to address a perceived gap in protection for transgender or other non-gender-conforming persons, does not extend to protect the ability of a man to grow a beard.

According to the decision, Browne had worked for Sudbury Integrated Nickel Operations for 19 years, the last 12 as a converter aisle crane operator at the company’s smelter complex.

All employees who work at the smelting plant, including Browne, are required to be fitted for an approved respirator mask, which must be worn while performing certain tasks to protect from potential exposure to sulphur dioxide, as well as fumes and dust carrying metals and silica.

For employees who use respirators, the company has a clean-shaven policy which prohibits the wearing of beards or any facial hair that may interfere with proper fit of the mask.

Not all facial hair is prohibited – employees may wear neatly trimmed moustaches or soul patches, for example, as they do not interfere with the mask.

The policy was not enforced, however, until spring 2014, partly due to a Ministry of Labour inspection. Meetings were held to inform affected employees that, effective April 1 of that year, the policy would be strictly enforced. While exemptions were available based on religious or medical grounds, such accommodation could result in an employee not being able to perform duties requiring a respirator.

Employees were told that failing to comply with the policy would result in discipline.

Browne testified had begun wearing a moustache and goatee in October 2012 out of support for the Movember movement, where men grow moustaches and other facial hair to express support for those who suffer from prostate cancer.

He testified he was moved to do so by the impact of prostate cancer on his relatives.

His facial hair did not conform to the clean-shaven policy, however, as his goatee went down and along his jawline. When asked why he did not simply wear a moustache to support the Movember movement, he responded that he had tried wearing one in college, but it did not look right.

Both Browne and the company agreed he did not request accommodation based on religious or other grounds. It was his position that the policy was discriminatory, so he did not believe it was necessary to make such a request.

Browne and the company disagreed over whether the clean-shaven policy was a reasonable occupational requirement. The company relied on Canadian Standards Association guidelines and gave notice of its intention to call expert evidence to support its position the policy was required for health and safety reasons.

Browne said those concerns can be addressed by performing a fit test on an individual basis, to ensure the mask fits properly.

Hart said this factual dispute would only become relevant, however, if Browne was able to show the wearing of facial hair was protected under the human rights code.

Browne alleged he faced reprisal for not complying with the policy, based on the threat of potential discipline for failing to follow the clean-shaven policy, as well as his conversation with a manager on March 25, 2014.

Browne said the manager asked him if he would comply with the policy by April 2 – his first shift back after the company would begin to enforce the policy – and when he said he would likely not comply, based on his view it was discriminatory, he was told that, as a leadership figure among employees, he should “re-think” his actions on the basis that others may follow his lead.

Browne testified he understood this to mean it would be on his conscience if other employees did not follow the policy and were disciplined.

He did shave off his moustache and goatee before his shift on April 2 and was not disciplined, but maintained his position that the threat of discipline amounted to reprisal in violation of the code.

In Hart’s decision, he wrote that he also considered whether the clean-shaven policy amounted to discrimination based on sex, and in doing so drew upon the outcome of a long-running battle between Canada Safeway and the union representing its employees over its no-beards policy, which had been the subject of numerous grievances and at least one human rights complaint.

In the end, the Manitoba Court of Appeal ruled the growing of facial hair cannot be elevated to a right protected under human rights legislation, absent from any connection to religious observance or other protected grounds and thus, Hart wrote, the clean-shaven policy cannot be regarded as discrimination based on sex.

As to whether the policy violated rights to gender expression, Hart wrote that while there may be cases where the ground of gender expression may extend beyond the protection of transgender and other gender-non-conforming persons, he ruled that should not extend to the right of men to grow beards.

There is nothing to indicate, he wrote, that bearded men “suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent from 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.”

Browne’s claim of reprisal had no reasonable prospect of success, Hart wrote, because under the code, such a claim must be based on an allegation that some adverse action was taken or threatened because of the claim of code rights, but the prospect of discipline was raised in the event he failed to comply with the policy.

ben.leeson@sunmedia.ca

Twitter: @ben_leeson

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