Navigating Employee Expression in the Workplace: Some Guidance from the HRTO

Employee expression in the workplace is one of the most complicated issues facing employers today, especially where the expression in question could be perceived as political. Many employees wish to express their deeply held beliefs while at work, and–separately–there is increasing pressure on employers to take stances that might, in the past, have been regarded as “too political.” What is the extent of an employer’s legal duty to permit personal expression in the workplace?

In Ontario, the Human Rights Code (“the Code”) does not prohibit discrimination on the basis of political belief, nor does the Canadian Human Rights Act (which applies to federally regulated workplaces). The Code does prohibit discrimination on the basis of creed, but the definition of “creed” has been found to exclude “mere political opinion.” However, while private employers are presumptively permitted to discriminate on the basis of political belief, an employer may still have a duty under the Code to permit personal expression—political or otherwise—that has a nexus with a protected characteristic, such as race, religion, or sexual orientation.

A recent decision of the Human Rights Tribunal of Ontario (“the Tribunal”), Zanette v Ottawa Chamber Music Society, 2024 HRTO 998 (“Zanette”), may assist employers in navigating the interplay between workplace expression and protected characteristics. The facts of Zanette are relatively straightforward: the applicant was volunteering for the respondent, and had affixed a rainbow sticker to his name tag. The rainbow is a widely recognized symbol of the 2SLGBTQA+ community, of which the applicant is a member.

The respondent asked the applicant to remove the sticker, and the applicant complied.

The question before the Tribunal was whether the respondent had discriminated against the applicant by requiring him to remove the sticker. The respondent did not seek to characterize the sticker as political expression, nor did it take issue with the particular message, if any, that the sticker would have communicated. Rather, the respondent relied exclusively on its volunteer dress policy, the terms of which were not in dispute.

The applicant alleged both direct and indirect discrimination. Direct discrimination occurs where there is express differentiation on the basis of a protected characteristic, or where differential treatment is clearly arbitrary and motivated by discriminatory animus. Indirect discrimination, also known as adverse impact discrimination, occurs where the burden of a formally neutral rule falls disproportionately on those who share a protected characteristic.

The Tribunal quickly concluded that the respondent had not engaged in direct discrimination, as there was no evidence that the application of the volunteer dress policy to the applicant was arbitrary or linked to the applicant’s membership in the 2SLGBTQA+ community. There was also no evidence that the respondent took issue with the sticker’s expressive content.

The Tribunal also found that the respondent had not engaged in indirect discrimination, as there was no evidence before the Tribunal that wearing a rainbow sticker is an “essential element” of being a member of the 2SLGBTQA+ community. Here, the Tribunal relied on Macdonnell v Waterloo (Regional Municipality), 2019 HRTO 1586, wherein the Tribunal held that the respondent’s employee dress policy did not constitute indirect discrimination against an employee of Scottish ancestry—a bus operator—who wished to wear a kilt while on duty. In reaching that conclusion, the Tribunal determined that wearing a kilt was not an essential element of being of Scottish ancestry.

The Tribunal contrasted the facts of Zanette with those of Webber Academy Foundation v Alberta (Human Rights Commission), 2023 ABCA 194, which concerned the refusal of a non-denominational Alberta school to set aside space for Muslim students to pray. In that case, the Alberta Court of Appeal found that daily prayer is an essential element of being Muslim.

The takeaway is that, while employers may have a duty to permit workplace expression that has a nexus with a protected characteristic, the bar set by the “essential element” test is relatively high. The decisions in Zanette and Macdonnell strongly suggest that the expression in question must be akin to a religious obligation. However, employers must take care to ensure that any internal policies governing workplace expression are applied consistently. For example, if the respondent in Zanette had previously permitted volunteers to modify their name tags, it would have had significantly greater difficulty persuading the Tribunal that its objection to the applicant’s sticker was not discriminatory.

Finally, it should be noted that this post is intended to provide a general overview of the obligations of private employers. Public employers to which the Canadian Charter of Rights and Freedoms applies may have different obligations with respect to freedom of expression in the workplace.