Case In Point
Request for Volunteer to Remove Rainbow Sticker from Name Badge Not Discriminatory, Says Human Rights Tribunal of Ontario
Date: September 25, 2024
In an important decision for employers, the Human Rights Tribunal of Ontario (Tribunal) confirmed that distinction does not necessarily amount to discrimination. In Zanette v. Ottawa Chamber Music Society, the Tribunal held that the Ottawa Chamber Music Society’s request that a volunteer usher (Zanette) remove a rainbow sticker from his name badge did not constitute discrimination on the basis of sexual orientation, gender identity or gender expression under the Ontario Human Rights Code (Code).
On August 1, 2019, while volunteering as an usher at an Ottawa Chamberfest (Chamberfest) performance, Zanette affixed a rainbow sticker to his name badge as a symbol of support for the 2SLGBTQ2 community. The volunteer manager asked him to remove the sticker, citing Chamberfest’s dress code policy, which prohibited any alterations to the name badge.
After discussing the issue via email with the general manager, Zanette complied with the request and removed the sticker. Notably, he continued volunteering with the organization following this incident. However, Zanette later filed an application with the Tribunal, alleging that the request constituted discrimination on the basis of sexual orientation, gender identity and gender expression. More particularly, he argued that the directive infringed on his expression of identity as a member and supporter of the 2SLGBTQ2 community, thereby violating his Code-protected rights. He emphasized the significance of the sticker as a symbol of his identity and advocacy.
Chamberfest denied it engaged in discrimination, stating its request was made to ensure compliance with its dress code. It claimed Zanette was fully aware of its policies, including the dress code.
Tribunal’s Analysis
The Tribunal’s analysis focused on the legal framework for establishing discrimination under the Code. To prove a prima facie case of discrimination, Zanette needed to demonstrate that he was a member of a protected group, experienced adverse treatment and that his membership in the protected group was a factor in the adverse treatment.
While the Tribunal acknowledged that Zanette belonged to a protected group and faced adverse treatment when he was required to remove the sticker from his nametag, it was not satisfied Zanette’s membership in a protected group was a factor in this treatment.
The Tribunal held the uniform/dress code policy applied equally to all volunteers and that there was no evidence suggesting the policy was selectively enforced against Zanette based on his sexual orientation, gender identity or gender expression.
Furthermore, the Tribunal held there was no evidence that wearing a rainbow sticker was essential to being a member of the 2SLGBTQ2 community, stating:
A decision made in the context of the applicant’s attempt to promote the 2SLGBTQ2 community on the name tag does not necessarily engage the Code. No evidence was presented to suggest that the applicant’s sexual orientation, gender identity, or gender expression were factors in the respondent’s decision.
Ultimately, the Tribunal dismissed Zanette’s application, concluding that he failed to establish a prima facie case of discrimination.
Key Takeaways for Employers
This case underscores the importance for employers to carefully examine their workplace policies, including dress code policies, to ensure they comply with human rights legislation and that they are enforced in a non-discriminatory manner.
For more information about this decision or for assistance in any review of your workplace policies, please contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
