Food for thought: do employers need to accommodate ethical veganism in the workplace?
The Ontario Human Rights Code (the “Code”) protects employees from discrimination in the workplace based on one (or more) of its protected grounds, which include disability, age, creed, sexual orientation, and gender identity. It further places a positive obligation on Ontario employers to reasonably accommodate employees to the point of undue hardship.
While the Code has been interpreted in a liberal manner, there are situations where employees will experience workplace discrimination that falls beyond its scope. One area where it remains unclear to what extent the Code will apply, however, is with respect to vegan employees.
In recent years, there have been several legal claims (in Ontario and beyond) based on the assertion that a worker’s ethical decision to follow a vegan lifestyle (i.e. avoiding all forms of exploitation and cruelty to animals for food, clothing, cosmetics or otherwise) should be protected as a human right in the workplace in much the same way as a religious belief or creed.
While the issue is likely to be one of increasing importance for Ontario employers as more Canadians look to adopt vegan diets, there is a critical distinction between ethical veganism and following a vegan diet for other reasons (such as out of personal preference). As such, while Ontario employers may wish to consider to what extent, if any, they should look to accommodate vegan employees in their workplace, determining the underlying rationale for the employee’s adoption of this lifestyle will play a critical role in assessing potential legal options and responsibilities.
The Current State of Ontario Law
In 2016, the Ontario Human Rights Commission released a statement, “In response to claims that ethical veganism is now a creed” to offer some guidance to employers and employees. The Commission made clear that ethical veganism could potentially fall within the ambit of the Code where it is found to constitute a “creed.” In making this assessment, the Human Rights Tribunal generally considers whether a particular belief system:
is sincerely, freely and deeply held;
is integrally linked to identity, self-definition and fulfilment;
amounts to a particular, and comprehensive, overarching system of belief that governs one’s conduct and practices;
addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence; and
has some connection to an organization or community that professes a shared system of belief.
If, after considering the above-criteria, uncertainty remains as to whether a belief system should properly be considered a creed, the Commission directs that “the overall purpose of the Code and statutory human rights law more generally should be considered.”
In 2019, the media reported about an Ontario firefighter who brought an application to the Human Rights Tribunal of Ontario alleging that his employer had failed to accommodate his personal commitment to ethical veganism. Specifically, the individual argued that “[my employer] failed to accommodate my sincerely held ethical beliefs (creed) when it failed to provide me with food that accommodated my personal commitment to ethical veganism, and then disciplined me and suspended me because I attempted to assert my right to accommodation of that sincerely held ethical belief.”
As of the date of publication, this case appears to be ongoing and a ruling is yet to be issued. That said, should the Tribunal side with the employee it will set new precedent in Ontario, and likely require that some employers reassess their approach to this issue and modify policies and practice accordingly.
Lessons from the UK
A recent decision from the UK provides some insight into how another common law jurisdiction is addressing this issue. An employee, Jordi Casamitjana, claimed that he was unfairly dismissed from his job after raising concerns (on the basis ethical veganism) about his employer’s pension fund investments in businesses engaged in animal testing.
While the tribunal has yet to determine why Mr. Casamitjana was dismissed (an issue to be addressed at a later date), it did conclude that ethical veganism qualifies under the Equality Act as a philosophical belief entitling those embracing it to similar protections as those who hold religious beliefs.
Guidance for Ontario employers and employees
Ontario employers should be aware it is probable that, given the right circumstances, ethical veganism in the workplace could be found to fall within the scope of the Code’s protections, thus requiring reasonable accommodation to the point of undue hardship.
As such, in the event that an employee in your workplace makes a request for accommodation (or raises a concern with the employer’s practices) on the basis of being an ethical vegan, the matter should be approached carefully so as to achieve a practical (and workable) resolution while limiting the risk of any unintended liability.
As a first step, employers should conduct further enquiries to better understand the nature of the employee request (and the basis on which it is being made). The duty to provide reasonable accommodation is triggered only where a Code-enumerated ground is activated. As such, an employee that follows a vegan diet out of personal preference may not have any legal basis for accommodation.
Beyond that, the employer should look to engage in an ongoing dialogue with the employee (and the union if applicable) to understand how reasonable accommodation may be provided. It is important to remember that employees are entitled to reasonable, as opposed to their preferred, accommodation. In assessing a reasonable accommodation, employers will also want to consider how other employees may be impacted.
If the issue is availability of vegan food, it may be something that can be easily addressed at a minimal cost. More complex circumstances, however, could arise. For example, if an employee takes issue with a core business practice as being inimical to their ethical vegan beliefs. In such situations, employers are best advised to contact an experienced employment lawyer to help steer the matter to resolution.
This article was originally published on January 17, 2020 on First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.
