On March 31, 2021 and April 8, 2021, the BC Human Rights Tribunal issued decisions dismissing discrimination complaints arising from mandatory mask policies.
These decisions will be of particular relevance to businesses and employers facing mask-wearing complaints from members of the public or their employees.
Medical Exemptions for Retail Customers
In The Customer v. The Store, 2021 BCHRT 39, the Tribunal found that without establishing a disability protected by the BC Human Rights Code (the “Code”) the complainant could not seek redress from the Tribunal for being refused service without a mask.
Decision
As a part of its safety plan, the Store had implemented a mandatory mask policy. The complainant entered the Store without a mask. A security guard approached the complainant and requested she wear a mask, pursuant to store policy. The complainant advised that she was exempt from wearing a mask, but refused to provide any additional information besides stating that wearing a mask caused breathing difficulties. The security guard informed the complainant that she could either wear a mask or leave. The complainant chose to leave.
The complainant filed a complaint against the Store alleging that the Store violated her rights under s. 8 of the Code, discriminating against her based on a physical or mental disability by requiring she wear a mask.
The complainant refused to provide the Tribunal with information regarding her alleged disabilities or how those disabilities interfered with the ability to wear a mask. The complainant merely amended her complaint to explain she found it difficult to breath with a mask, and that it causes anxiety.
The Tribunal found that in order to pursue a complaint under s. 8 of the Code based on the grounds of disability a complainant must set out facts, which if proven, would establish a disability protected by the Code. The complainant’s refusal to do so was fatal to her complaint proceeding past the initial screening stage.
The Tribunal acknowledges that it has not yet considered how much information a customer must provide a retailer to give rise to a duty to accommodate the customer’s disabilities, and in the meantime the decision makes express reference to the Human Rights Commissioner’s recommendation that where the relationship is brief, service providers should accommodate those who are unable to wear masks without requiring them to provide medical information.
Objections to Mask Use
In The Worker v. The District Managers, 2021 BCHRT 41, the Tribunal found that an objection to wearing a mask that is based on what was ultimately found to be personal preference and opinion is not protected by the Code.
Decision
The complainant was contracted to work at a District facility. Upon arriving for work, the District Managers advised the complainant he was required to wear a mask. The complainant stated his “religious creed” prohibited him from wearing a mask. The District Manager refused entry to the complainant, and the complainant’s contract was subsequently terminated.
The complainant filed a complaint against the District Managers. The complainant alleged that the District Managers violated his s. 13 rights under the Code, discriminating against him based on his religion by requiring he wear a mask.
The complainant stated that it was his belief that “to cover up our face arbitrarily dishonours God,” the mask requirement infringes on his “God given ability to breathe,” the mask requirement was not effective against COVID-19, and that showing his face constituted freedom of expression.
The Tribunal found that the complainant failed to demonstrate that his opposition to wearing a mask is grounded in a sincerely held religious belief. Specifically, the complainant was required to set out facts, which if proven, would establish a practice or belief that:
- is objectively required by his religion;
- he subjectively believes is required by his religion; or
- engenders a personal, subjective connection to the divine, or to the subject or object of his spiritual faith — as long as that practice has a nexus with religion.
The Tribunal found that the complainant’s objection to wearing a mask was based on his personal preference and opinion, which were in essence a disagreement with the reasons for the mask-wearing requirements set out in the public health orders. As this is not a belief or practice protected from discrimination on the basis of religion protected by the Code, the Tribunal also dismissed this complaint at the screening stage.
Key takeaways
These decisions demonstrate that in both the employment and service context, the Tribunal is rigorously reviewing anti-masking complaints at the screening stage, before the service provider or employer incurs the costs of responding to the complaint. Mere disagreement with the efficacy of mandatory mask policies or personal preference will not be sufficient to give rise to a discrimination complaint under the Code.
It is also clear from these decisions that the Tribunal has received a high volume of complaints alleging discrimination in connection with mandatory mask policies. The Tribunal’s unusual step in publishing these screening decisions reflects the public interest in these issues. The Tribunal has also set out a separate process aimed at addressing mask-wearing complaints in particular, which encourages the parties to reach an informal and expedited resolution. These processes and guidance can be found here.
For further information regarding this article, please contact Jessica Fairbarn or Nicole Toye
