Human Rights Office

Queen's University
Search Type
Human Rights Office
Human Rights Office

Browne v. Sudbury Integrated Nickel Operations, a Glencore Company (Smelter Division) 

Summary:

During the time in question, Christopher Browne worked for Sudbury Integrated Nickel Operations as a Converter Aisle Crane Operator in the company’s smelter complex. Mr. Browne had worked for the company for 19 years. All employees who worked in the smelting plant are required to be fitted for and carry an approved respirator mask. For certain activities the respirator mask is required to be worn (health and safety reasons).  For employees required to wear the respirator mask the company has a “clean shaven policy”. In the spring of 2014 a memo was sent out to employees indicating that as of April 1, 2014 the “clean shaven policy would be strictly enforced and failure to comply with the policy would result in discipline. On March 25, 2014 the applicant met with management and expressed his concerns and questions regarding the policy. The applicant did not believe that the “clean shaven policy” constituted a reasonable and bona fide occupational requirement. The applicant felt that ensuring the proper fit of respiratory masks could take place with a beard provided there was a “fit test”. At the March 25, 2014 meeting the applicant was asked by the respondent whether or not he would comply with the policy. The responded stated he would likely not comply. In the end, the applicant did shave off his mustache and goatee for his shift on April 2, 2014. Despite complying with the policy and not being disciplined, the applicant alleges that the threat of discipline amounts to reprisal and therefore a violation of the Code. In this case it was concluded that the growing of facial hair, other than perhaps for reasons related to a religious observance, is not protected under the Code in relation to either the protect ground of sex or gender expression. In addition, it was decided that the applicant’s allegation of reprisal did not have a reasonable prospect of success. 

Question to be Determined:

            1. Did the applicant, Christopher Browne, experience discrimination and reprisal with respect to employment because of gender expression?

Findings:

            1. Did the applicant, Christopher Browne, experience discrimination and reprisal with respect to employment because of gender expression?

NO

Reasoning:

  1. Relying heavily on previous case law, it was decided that the company’s “clean shaven policy” did not amount to discrimination because of sex and/or gender expression. Relying heavily on previous case law (Brooks v. Canada Safeway Ltd. 1989) it was stated that,

the growing of facial hair cannot be elevated to a right protected under human   rights legislation, absent any connection to the growing of facial hair as a matter of religious observance or perhaps to some protected ground other than sex. In my view this ruling by the Supreme Court of Canada is binding upon me and is determinative of the issue that the respondent’s “clean shaven policy” cannot be regarded as amounting to discrimination because of sex (para 32).

It was further stated that “wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation, once again absent any connection to a matter of religious observance or perhaps a different protected ground other than sex” (para 33).

In particular, this case examined whether or not the addition of gender expression to the Code (2012) would change the outcome of this case. In relation to gender expression being added to the code it was stated that,

The issue for me to consider is whether the ground of “gender expression” added as a result of Toby’s Act should be interpreted to protect the right of cisgendered men to wear beards. In my view, it should not….in my view, interpreting “gender expression” broadly to extend protection to the right of men to grow beards would do violence to the important and fundamental purposes sought to be achieved by human rights legislation. There is nothing to indicate that bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression (para 37 & 39).

The final matter discussed in this case was whether or not the applicant’s allegation of reprisal had a reasonable prospect of success. In this matter, it was decided that the applicant’s allegation of reprisal did not have a reasonable prospect of success. In supporting this finding it was stated that,

the right protected under s. 8 of the Code relevant to this proceeding is the applicant’s right “to claim and enforce his….rights under this Act….without reprisal or threat of reprisal for so doing.” In order to establish a violation of this          provision, the applicant needs to prove not just that he was in jeopardy of experiencing a negative or adverse consequence, such as a potential discipline, but that the threat of discipline was made because he claimed his rights under the Code (para 45).

It was further stated that “even on the applicant’s own evidence, the prospect of potential discipline was not raised by the respondent because the applicant claimed his Code rights, but rather was raised in the event that the applicant failed to comply with the “clean shaven policy” which I have found not to be in violation of the Code (para 47).