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Free speech v. discrimination: When workplace rules cross the line

emailAn employee distributes this email message among your workers:

“Any person engaging in homosexuality offends Almighty God and will spend eternity burning in hell.”

As an employer, can you:

  • ● Tell the employee to stop?
  • ● Discipline this employee?
  • ● Fire this employee for cause?

What if you just ignore the message? What about free speech? Freedom of religion?

If you discipline the employee who sent this email message you may be discriminating on the basis of that employee’s religion, and this is against the law. A workplace rule or demand may be illegal if it has a negative effect on an employee because of their religion—UNLESS you can prove that the rule against or demand to stop spreading such messages is considered a bona fide occupational requirement (BFOR). That is, the rule is needed for the smooth operation of your business.

A BFOR is legitimate when:

  • It is rationally connected to the performance of a worker’s job
  • It is adopted in good faith and necessary for a work-related purpose and
  • It would be an undue hardship on the employer to accommodate the individual involved in the behaviour

The recent case of Friesen v. Fisher Bay Seafood and others, 2009 BCHRT 1 is a great example.

A fish processing employer in British Columbia told a supervisor that he had to stop “preaching” his religious beliefs to his co-workers. The supervisor continued to “preach” after being asked to stop. The supervisor was fired and filed a complaint with the British Columbia Human Rights Tribunal claiming he was discriminated against because of his religious beliefs.

There was no dispute that the only reason for the employee’s termination was his refusal to stop preaching during his work hours. The employee established that he was sincere in his beliefs that his religious practice required him to preach at any time. He believed that, “if you don’t preach people will never know what Jesus Christ is about”.

However, the tribunal agreed with the employer that this rule was a BFOR. The rule helped to maintain an environment where all employees’ beliefs were respected. Workplace rules must protect all of your employees’ interests and contribute to the smooth operation of your business.

However, be mindful to treat all employees with respect and make sufficient attempts to accommodate their religious beliefs. This will go a long way in assisting an employer in defending such necessary rules, in addition to demonstrating that the employer’s duty to accommodate has been fulfilled.

Andrew Lawson
Health and Safety/Human Rights Advisor, Learn Don’t Litigate

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Andrew Lawson

Trainer and advisor at Learn Don't Litigate
Andrew Lawson is a human rights and health and safety trainer and advisor, currently consulting to both the federal and Ontario governments. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law. He has worked in the people management business for over 25 years. Read more
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