The BC Human Rights Tribunal (the "Tribunal") recently released a screening decision providing guidance on the circumstances in which a business' refusal to provide entry or services to individuals not wearing a mask may constitute discrimination under the Human Rights Code, RSBC 1996, c 2 (the "Code").
In Customer v. The Store, 2021 BCHRT 39, the Tribunal determined that a person who seeks an exemption from a mask mandate on the basis of the Code must provide proof of the underlying disability. This decision is the first time that the Tribunal considered whether a retailer's mask mandate violates section 8 of the Code, which prohibits discrimination in the provision of an accommodation, service or facility customarily available to the public, on a number of protected grounds, including physical and mental disabilities.
Despite its standard practice to not publish screening decisions such as the Customer's complaint, the Tribunal noted that it had received a large volume of complaints alleging discrimination in connection with the requirement to wear face coverings indoors. It was in the context of such public interest that the Tribunal published this decision.
The facts involve a customer's visit to a grocery store on September 28, 2020. The customer was not wearing a mask while in the store and, as a result, a security guard informed her that the store had instituted a mask-wearing policy that she must comply with in order to remain in the store. The customer told the security guard that she was exempt from wearing a mask because of the health issues that masks cause her. However, the customer refused to tell the security guard what her alleged health issues were as she felt that a health issue is private information. The security guard maintained that the customer must either wear a mask or leave the store, at which time the customer left the store.
The customer subsequently brought a human rights complaint against the store alleging that the store, by requiring her to wear a mask in order to shop at the store, discriminated against her based on physical and mental disabilities. The Tribunal outlined that, for the customer to demonstrate a possible contravention of the Code, she must set out facts supporting that:
- she has a disability;
- the store's conduct had an adverse impact on her regarding a service, and
- her disability was a factor in the adverse impact.
In determining whether the customer satisfied this criteria, the Tribunal determined that the customer's justification for refusing to wear a mask, namely, that masks make it difficult to breathe as well as cause anxiety, did not set out facts that, even if proven, could establish that she has a physical or mental disability that was a factor in this adverse impact.
The Tribunal held that the Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is "pointless", or because they disagree that wearing masks helps to protect the public during the pandemic. Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is already reflected in exemptions to mask-wearing policies for people whose disabilities prevent them from being able to wear a face covering. As such, any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.
The Human Rights Tribunal of Ontario has provided a similar analytical roadmap in its recent decision of Sharma v. Toronto (City), 2020 HRTO 949, affirming the principle that an individual alleging discrimination as a result of the enforcement of mask mandates bears the onus of proving:
- that the individual has a protected trait (such as a disability);
- that the complainant was denied access to a service; and
- that the denial of access to the service was due, at least in part, to the individual's protected trait.
Although the above noted decisions arose in the context of customer-business relationships, a similar analysis applies with respect to employment relationships in instances where an employee refuses to adhere to an employer's mandatory mask policy. An employee alleging discrimination by an employer's mandatory mask policy must be able to show that the employee has a legitimate disability or other protected trait preventing the use of masks, and that he or she has suffered some adverse treatment by the employer as a result, such as forms of discipline. The Code does not protect employees who refuse to comply with an employer's mask mandate due to personal preference or opinions about its efficacy.
Gowling WLG Focus
We continue to closely monitor legal developments under human rights legislation, especially those with implications for businesses and employers dealing with COVID-19 related issues. For questions about COVID-19-related measures and human rights considerations in the workplace, the Gowling WLG Employment, Labour & Equalities Group would be pleased to assist.