The mandatory requirement to wear face masks in indoor public settings, subject to certain exemptions, has resulted in a surge of human rights complaints, alleging that this requirement is discriminatory in the areas of services and facilities available to the public and employment. In response to this surge of complaints, the British Columbia Human Rights Tribunal (the “Tribunal”) recently published two anonymized screening decisions to provide guidance to the public on what is required to establish that a mandatory face mask requirement is discriminatory on the grounds of disability or religious belief. The first screening decision, The Customer v The Store, 2021 BCHRT 39, was previously discussed in this article here.
In the second screening decision, The Worker v The District Managers, 2021 BCHRT 41, the Tribunal considered whether an Employer discriminated against an employee on the grounds of religious belief by refusing to allow the employee to enter the workplace and subsequently terminating the employee’s contract for his refusal to wear a face mask.
Background
Since November 24, 2020, individuals in British Columbia have been required by ministerial order to wear face coverings indoors, subject to certain exemptions. Following this ministerial order, an employee (the “Worker”) arrived at a facility to perform work and refused his manager’s request to wear a face mask, saying it was against his “religious creed”. The Employer (the “District”) refused to allow the Worker to enter the workplace without a mask and subsequently terminated the Worker’s contract for his refusal to wear a face mask. The Worker filed a human rights complaint, alleging discrimination in employment based on religion.
The Worker’s complaint proceeded to a screening decision, in which the Tribunal considered whether to accept the Worker’s complaint for filing and reviewed the Worker’s complaint to ensure it alleges a possible violation of British Columbia’s Human Rights Code. Although screening decisions are typically issued by letter, given the large volume of complaints concerning the mandatory mask requirement and the public interest in this issue, the Tribunal published the screening decision, with the parties names anonymized for privacy purposes.
The Tribunal’s Screening Decision
To assess whether the Worker’s complaint alleged a possible violation of the Human Rights Code, the Tribunal considered whether the Worker’s complaint contained facts supporting the following: (1) the Worker’s religious belief; (2) that the District’s conduct had an adverse impact on the Worker’s employment; and (3) that the Worker’s religious belief was a factor in the adverse impact.
The Tribunal described the Worker’s description of his religious beliefs in his complaint as follows:
… “We are all made up in the image of God, a big part of our image that we all identify with is our face. To cover-up our face arbitrarily dishonours God”. The Worker says it is his freedom of expression to show his face in the general public and his religious liberty to identify his face to others. He says the mask requirement infringes on his “God given ability to breath”. The Worker does not believe that mask wearing is effective. He says, “God makes truth of high importance that I must follow ethically and morally”, “forced mask wearing does not help protect anyone from viruses”, and, therefore, he cannot “live in that lie”. On this point, he continues (as written):
“The BC health provincial health office even stated the order was not being put into place for safety reasons, but because business pushed her to enforce it. Furthermore, there is no case that this is safety issue and any of the data shows no difference where masks where enforced, in fact the opposite is true that cases went up. The studies that have been on masks show no reason to wear them in general public and that has been repeated by health professionals around the world.”
The Tribunal noted that protection of a religious belief or practice is triggered under human rights legislation when a person can show that they sincerely believe that the belief or practice has a connection with religion and is “experientially religious in nature”. The Tribunal found that the Worker’s description of his religious beliefs, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”, as he has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith.”
Rather, the Tribunal found that the Worker’s objection to wearing a mask was his opinion that doing so was “arbitrary” because it does not stop the transmission of COVID-19. The Tribunal went on to explain, referencing the first publicized screening decision, The Customer v The Store, that the Human Rights Code does not protect people who refuse to wear a mask because of the following:
As such, the Tribunal found that the Worker’s complaint did not set out a possible contravention of the Human Rights Code and refused to proceed with this complaint.
Lessons for Employers
This case confirms that human rights protection and the Employer’s duty to accommodate are not triggered for individuals who refuse to wear a mask for the following reasons:
For a refusal to wear a mask on the basis of religious belief to trigger human rights protection, the religious belief must be sincerely held, required by religion, and be “experientially religious in nature”. If the employee’s belief does not meet these criteria, the employee’s refusal to wear a mask will not trigger human rights protection.
If you have further questions about this case, please reach out to a member of Cox & Palmer’s Employment & Labour Group.
