Is Simply Preferring Not to Wear a Mask Enough? The BC Human Rights Tribunal’s Response

Over the last year and a half, life as we know it has changed drastically as a result of COVID-19. One change we have seen worldwide is the use of face masks as a means to decrease or minimize the spread of COVID-19. In November 2020, British Columbia implemented a mandatory mask policy for all indoor public spaces.

Since October 2020, the British Columbia Human Rights Tribunal (the “BCHRT”) has received a large volume of complaints alleging discrimination concerning an individual’s requirement to wear a face-covering indoors. Accordingly, the BCHRT recently issued two noteworthy screening decisions called The Customer v The Store and The Worker v The District Managers. In both these decisions, the BCHRT declined to proceed with complaints wherein an individual alleged discrimination, one for disability and the other religion, as a result of being required to wear a face mask.

These decisions demonstrate when the BCHRT will proceed with a mask-wearing complaint and therefore are important for businesses and employers to be aware of and understand.

PART I: THE CUSTOMER V THE STORE

Facts

The complainant visited a local grocery store in September 2020, where she was refused entry because she was not wearing a mask. The security guard informed the individual she could put on a mask or leave the store. The individual responded by saying she was exempt from wearing a mask because they cause “health issues”, which she refused to elaborate stating only that masks “cause breathing difficulties”. In the end, the security guard denied the customer entry and she filed a complaint with the BCHRT on the basis that the store discriminated against her due to a disability.

Tribunal’s Decision

As always, the BCHRT screened the complaint to ensure that it was related to a potential human rights violation. Normally screening decisions are not published; however, the BCHRT chose to publish this decision due to the high volume of mask-related complaints they had received.

The BCHRT concluded that the complaint did not set out a possible contravention of the Human Rights Code (the “Code”). The customer alleged that she could not wear the mask because it caused breathing difficulties, but she refused or failed to provide further details on the basis of privacy concerns.

In considering the complainant’s position, the BCHRT concluded that to have a successful claim for discrimination based on a requirement to wear a mask, the complainant must prove they have a disability that interferes with mask-wearing. In order to prove this, the complainant must provide some form of evidence. The complainant failed to do so. It is not enough for an individual to refuse to wear a mask based on personal preference.

It is important to note that the BCHRT commented that they had not considered how much information an individual is required to provide to a business to qualify for mask-related accommodation. The BCHRT left that specific issue for another day. Instead, the BCHRT noted that “[w]here the relationship is brief, I recommend duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive personal information”.

Key Takeaway for Businesses

The takeaway for businesses is that, while they may not be able to require their customers to provide medical information regarding their ability to wear a mask, they should take some comfort in knowing that in order for a complaint to be successful with the BCHRT, the complainant will need to provide medical information regarding their inability to wear a mask.

PART II: THE WORKER V THE DISTRICT MANAGERS

In a subsequent decision, titled The Worker v The District Managers, the BCHRT followed suit in publishing another screening decision where they dismissed a complaint related to mandatory mask-wearing. This decision involved a worker (the “Worker”) claiming discrimination in having his contract terminated after refusing to wear a mask for religious reasons.

Facts

The complainant Worker was contracted to work at a District facility. Upon arrival, he refused to wear a mask claiming it was his “religious creed”. The facility manager would not allow him entry to the facility and the District Manager then terminated the Worker’s contract for not wearing a mask.

The Worker claimed discrimination under s. 13(1) of the Code. This section of the Code states that “A person must not refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment because of the … religion… of that person …”.

Tribunal’s Decision

The BCHRT found that the complaint was not a possible violation of s. 13(1) of the Code. Rather the facts pointed to his complaint being, in essence, that masks are ineffective. This is not a belief or practice protected from discrimination on the basis of religion.

The test for discrimination in employment under the Code comes from Moore v British Columbia (Education). To be successful in his claim, the Worker needed to set out facts supporting: (1) his religious belief; (2) that the District Managers’ conduct had an adverse impact on him regarding his employment; and (3) that his religious belief was a factor in that. To establish a religious belief or practice protected under human rights legislation the Worker had to show that he sincerely believed that “the belief or practice (a) has a connection with religion; and (b) is “experientially religious in nature”: Syndicat Northcrest v Amselem”.

In describing his religious beliefs, the BCHRT found that the Worker could not establish that his objection to wearing a mask was experientially religious in nature. The BCHRT found no facts that supported a finding that wearing a mask was objectively or subjectively prohibited by any particular religion, or that not wearing a mask was related to a connection to the object of his spiritual faith.

The BCHRT found that, at its core, the Worker’s complaint was based in his disagreement with the reasons for mask-wearing as set out by the Provincial health office. The BCHRT referred back to their decision in The Customer v The Store in confirming that the Code does not protect someone’s personal preferences or beliefs on the effectiveness of mask-wearing in the pandemic.

Key Takeaway for Businesses

Employers should not use the above analysis to question their workers’ beliefs but rather, continue making decisions informed by the public health orders regarding the safety of their workplaces. As the COVID-19 restrictions ease and more people return to the workplace, being familiar with the grounds for discrimination in employment under human rights legislation can help guide employers through this process.

Due to the abundance of mask-wearing complaints and their public interest nature, the BCHRT has developed specific procedures.

If you have any questions about either of these decisions, please contact one of the members of our Labour & Employment team.

This publication was written by Employment Lawyer Kirstn Mase and Student-at-Law Jolene Sanderson.

Related Practices