This is an Application filed on April 1, 2014, and completed on June 3, 2014, alleging discrimination with respect to employment: Human Rights Case study, STU, Canada

University St. Thomas University (STU)
Subject Human Rights

[1] This 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.

[2] The 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.

[3] The 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.

[4] All 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 sulfur dioxide gas as well as fumes or dust carrying a variety of metals and silica.

[5] For 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.

[6] In 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 2016 HRTO 62 (CanLII) 4 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 “cleanshaven 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.

[7] At 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 jawline. 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.

[8] When 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.

[9] The 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 an accommodation, although the applicant’s evidence is that the respondent indicated that accommodation was restricted to religious or medical reasons.

[10] There 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.

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