Here’s a brave prediction: Deepinder Loomba will win his case at the Ontario Human Rights Tribunal. The Sikh security guard evidently hit a wall of refusal (and ridicule) when he advised the folks at a Home Depot construction site in Milton, Ont., that he couldn’t trade his turban for a hard hat. If there’s one thing the courts have been clear on in this country, it’s that an employer has to try—that’s what the loaded phrase “reasonable accommodation” means. The bosses must make a sincere attempt to reconcile religious requirements with the other laws they’re required to follow.
Still, the 50-year-old has plunged us back into the bramble patch of safety versus religious freedom. And his case may well force us to consider our responsibility to each other in new ways. What onus, it implicitly asks, do we have to stop someone from exposing himself to risk? If, as courts seem increasingly disposed to rule, religious freedom outweighs the potential costs to society, what’s an employer to say? The answer in many such cases in the future may be: “Suit yourself.”
To be clear, we’re not there yet. “Across the entire country, hard hats are required not only for safety but insurance reasons,” notes Bill Ferreira, who speaks for the Canadian Construction Association. “In this case, safety trumps religious freedom.” Indeed, the Supreme Court of Canada ruled in 1985 that a Sikh railway worker named Karnail Singh Bhinder was required to wear a hard hat on the job, apparently putting the matter to rest.
Then, as more such cases arose, a funny thing happened. The legal community took a harder look at the real implications of exempting people from helmet or hard-hat laws. The revision was prompted by a dissent to Bhinder written by then-Chief Justice Brian Dickson. In it, he noted that there was negligible risk to Karnail Bhinder, no cost to the employer and, most important, no risk to anyone else. “The dissent is considered in legal circles to be more persuasive,” says Bruce Ryder, a professor at Osgoode Hall law school who has studied human rights and religious freedom. “He concluded that it was an easy case for reasonable accommodation,” because there was no undue hardship on the employer or Bhinder’s co-workers.
By 1990, the high court had turned 180 degrees, concluding that the reasoning in Bhinder was “no longer representative of the law,” (though they stopped short of actually reversing Bhinder’s hard-hat requirement). The door was officially opened. Challenges to motorcycle helmet laws would follow—B.C. and Manitoba created exemptions for religious headwear, while an Ontario judge recently upheld a ticket to a Sikh man caught riding helmetless; his case is now under appeal. Workers at a B.C. sawmill, meanwhile, have challenged hard-hat requirements in that province, and have a good chance of having the occupational safety laws in that province rewritten.
This new wave of thinking hangs on an intriguing—and more libertarian—take on religious freedom as it pertains to safety. “Not wearing a hard hat doesn’t jeopardize anyone else’s safety, ” says Ryder. “If risk to others [in the workplace] is very low, the right answer may be to say this is a matter of individual choice.” To understand how this is possible, it’s important to remember that human rights decisions supersede other laws. That means a Sikh who wins an exemption from hard-hat rules will not be able to sue due to the absence of his hard hat. His decision should not, therefore, dramatically inflate employers’ insurance premiums, and the standard concern about these exemptions creating “undue hardship” on employers will be moot.
The costs to the rest of society are another matter. As the provincial court judge hearing the Ontario motorcycle helmet case noted, the cost of treating devastating brain injuries is enormous. So too is the burden on family members who lose a loved one to head injury. The state, therefore, has a legitimate interest in keeping people safe. Moreover, how does one assess the potential risks and expenses on a site-by-site, worker-by-worker basis? What are the risks on, say, a construction site, where a worker may split his time between an office trailer and a yard of swinging I-beams? Making the calculation itself could become a hardship.
By comparison, Loomba’s case seems fairly clear-cut. He had what amounted to a desk job outside the entrance to the main construction zone, watching other employees walk by to pick up their hard hats. How often he ventured into an area where nail guns were sounding is in dispute. The real question, though, is whether we should bother to dispute it. If an employee wants to wear a turban, and is made aware of the risks, why not let him make the call?