Sikhs and hard hats: let freedom reign

If an employee wants to wear a turban, and knows the risks, why not let him make the call?

by Charlie Gillis

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?




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Sikhs and hard hats: let freedom reign

  1. “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.”

    Is this true? What about if his wife/children sue if Loomba is killed/turned into vegetable on work site? I am all for as much freedom as possible, so I support his right not to wear a hard hat if he doesn’t want to, but I don’t believe other canadians, courts/juries feel as I do.

    • whose freedoms are you for? If one is given rights over another than someone's freedoms are being infringed upon. It's all for one and one for all that's what makes a nation strong, we have become separate within our borders, in war and in peace I can't trust someone who views and beliefs are different than mine that is why there can be only one set of rules for all who live under the same flag. There is no room for religion in politics and there is no room for religion in this country. Believe in God but see religion for what it is: a government all unto itself.

  2. I’m on the side of societal cost. If it was truly libertarian, there wouldn’t be a socialized health care system in place to take care of him. I guess if you opt out of OHS requirements, and the provincial health insurance, then you could do whatever you like as long as it didn’t affect the safety of others.

    “the standard concern about these exemptions creating “undue hardship” on employers will be moot ”

    Not necessarily, you could argue that increase in downtime from injuries, or the increase in severity of first aid response requirements make the decision to hire a conscientious safety objector difficult . So could an employer be allowed to not hire a worker who was going to exempt themselves from the safety laws.

    • I agree – as long as we have social programs such as welfare, ‘free’ medical care, etc. etc. – then society has a say in this. And I for one am not willing to pay for someone else’s medical care because they didn’t want to wear safety gear for religious reasons. So unless they opt out of all care that would be provided by others tax dollars – you wear a helmet!!

  3. I’d argue that if they refuse to wear a helmet/hard hat they should have to waive any right to sue the employer, other employees, any right they might have to government health insurance, disability, or social services that may be required as a result of an accident that reasonably would have been prevented or ameliorated by use of a hard hat or helmet. Either that, or require they buy insurance to cover all the above, which I’m sure would be obscene.

    They can’t have it both ways, in other words.

  4. Check out the military – in India. Guess what, Sikhs wear helmets! Check out the Canadian military – same thing applies. The religion isn’t as restrictive as some Sikhs would leave you to believe.

    • It isn’t how others view the religion’s requirements, the right is measured by how the individual adherent measures the religion’s requirements. Whether some other practitioners view the necesseties of the faith differently isn’t tremendously important.

      • Well said Mike.

      • It does if it affects those around them.

    • Sikhs fought in world wars from the allied side with their turbans on. In Indian army sikhs fight with their turbans on. Only the special commandos or operation forces have specially made helmets for them and they have a choice. Maybe other nations should learn from India. They accomodate and have far less problems. I fully agree with the article. It should be a personal choice. I mean why create fuss over a little thing when you can simply integrate. Also it has been proven that sikhs are the most loyal and they draw strength from their identity.

      • I am aware of the Patka (specially designed kelvar helmet for Sikhs) which is also worn by special operations police forces. My understanding is that it is not optional for these services but is for regular units. India is not a litigious society like Canada and the USA. My point is there are ways to comply and meet the demands of the job. Safety is an issue. If a soldier goes down in combat due to a preventable head wound he ties up valuable resources and may endanger the success of the mission and the lives of those around him who have lost a fellow combatant and who could be attempting to save his life under fire. While the case in point hardly fits the scenario above, it can be solved with a bit of ingenuity. I have never questioned the warrior ability or loyalty of Sikhs in combat. That said, I believe Sikhs in Canada will win this one. Further to what I said, while the tenants of Sikhism state that facial/head hair and hair covering are signs of full manhood, too my knowledge, no Sikh has been excommunicated from his religion for wearing a helmet/hard hat.

        • To reiterate, the answer to your question appears above.

        • How much rent do the tenants of Sikhism have to pay? And to whom?

      • Great point so why only sikhs get to make choice ? This is very ignorant if you preach for choice then everyone gets to make the choice not just your religion ! If you want to fight for freedom fight for everyones freedom not just your that is pure greed

  5. I am going to guess that Bhinder will win, but the decision will focus on the lack of actual danger for somebody doing his exact job.

  6. Canada expects its citizens to follow its rules and its laws. In the matter of safety, citizens are expected to protect their children and buckle them into car seats and to buckle themselves into seat belts. There are exemptions from the seat belt law which can be obtained, If one is physically or otherwise incapacitated, by a letter from a doctor. It is evidently desirable not to leave the judgement of whether to wear a seat belt or not to the lone individual and thereby flout the law. Therefore, it should not be left up to the turban-wearer to decide if his/her practice endangers the safety of others, or his/her own safety. It is the turban-wearer’s choice, initially, to decide if a job which conflicts with his/her religion is the right one to choose. Seat belts and car seats for children are mandatory for the safety of all. If we do not choose to use them, then we must resign ourselves to choosing public transit instead. If one does not choose to wear a hard hat, then one does better to choose a job where this is not mandatory.

    • For those arguing the social cost of not wearing a hard hat, what about the situations where a Sikh is always protected by turban in everyday situations and rest of the population is not, for example walking down a icy street in winters of Canada. or a filght of stairs to the office or apartment, or to aviod injuries when boarding a transit rail Should we mandate hard hats for such situations too, because of the social cost?

      • Come on ! U really believe that some cloth is goin to save you this is more than a safty issue this is about discrimination against the general population that has to adhere to these laws ! Either no one has to wear a hard hat or helmet or everyone has to this is the solution to this ongoing contraversy that is a burden on or resourses change the laws and let everyone make their choice ! I wear my hard hat at work becuase it gives me a feeling of security but wen i look around and see that certain people dont have to i feel that i have less freedoms than they and i feel discriminated apon .

  7. Speaking as someone who has worked in heavy industrial environments. I can tell you the decision to not wear safety equipment not only endangers you but those who work with you.

    Lets say for example you’re driving a heavy piece of equipment while not wearing a hard hat and something knocks you out and the equipment keeps going. Everyone around you is now at risk. Sure there are loads of other safety features to prevent things like this happening, by why take the chance when a 30$ hard hat could potentially prevent it.

    The rules are there to keep everyone safe regardless of religious sensibility.

    • Your example regarding heavy equipment seems reasonable. But it doesn’t appear to have anything to do with the case currently under consideration. It’s entirely possible the guy handing out hardhats at the front of the site is in a danger so negligible that there is no difficulty in letting him wear a turban.

      • I would agree that this particular case probably doesn’t warrant the use of a hard hat. The question is where do you draw the line legally? There are tons of people who work in security booths and may have no reason to leave them 99% of the time. But what if they have to go into an area that is dangerous?

        OH&S regs are convoluted enough without the addition of specific exemptions for particular situations. I’ve lived though plenty of safety rules that may appear useless but are designed to protect employers and employees (both physically and legally). In the event that this was an insurance related requirement. Insurance companies have the duty to minimize risk (for both their investors and clients).

        In my opinion worker safety trumps employee choice. Especially when your decision can have potentially huge ramifications for all involved.

        • You draw the line legally at ‘undue hardship’, determined on a case by case basis with specific regards to the facts of each situation.

      • I worked in a lot of industrial environments to help pay for my education (I think the 2,000+ hours will mean I can pay off my crippling student loan debt in 9 1/2 years instead of 10. Anyway, I digress). A few points.

        One particular task may not really warrant a hard hat, but in some places, you can’t move 20 feet from that task without needing one.

        Any serious injury effects more than just the person injured. If you’ve ever seen one (I’ve helped bandage a few in my time), you don’t just go, “Oh, well, it wasn’t me. I’ll just keep doing my thing.” (At least, normal, compassionate people won’t.) You’re going to be pretty shocked & distracted for a while, which I’ve seen lead to some to close calls.

        Hard hats sometimes are a bit of a symbol of solidarity. Not wearing one can separate one from the rest of the group, which never helps site safety.

        Is there such a thing as a turban that is compatible with a standard hard hat? Alternatively, how hard would it be make a hard hat which fits over a turban? (I suppose I should also ask if wearing a hard hat over a turban is allowable.)

        • I totally agree with your thinking!

    • Good point. You make perfect sense. I wish you were in charge of making the decision.

  8. In the this isn’t about religious freedom; it’s about whether an employer can force you to take measures for your own safety. If the answer is “no” (which is fine by me) then it applies to all of us, not just those with religious motives. Conversely if the answer is “yes” then it also applies to all of us, including sikhs. Anything else is just a court trying to be politically correct at the expense of even-handed law.

    • It is, in point of fact, about both those things and how they intersect legally.

      • And particularly about whether an employer is liable in the event of an accident happening to a worker who had voluntarily, for religious reasons, departed from the safety code. The courts should rule very clearly on that — so clearly that insurance companies would have to pay up — and then we’re all set.

        • It’s unlikely to come up in this case, in fact it’s unlikely to be decided until an insurance company tries to not pay a claim because someone wasn’t wearing a hard hat for religious reasons. Or (more likely, now that I think about it), when an insurance company tries to increase rates because somebody won’t wear a hard hat. But it might not occur for a long time, if ever, because the more likely the accident, the less likely you are to have the religious right to depart from safety standards.

  9. I may be missing something here, but couldn’t an individual make their choice but private insurance be mandatory? The only exceptions being, as in seatbelts, where harm to others is obvious.

  10. Time to quit all these idiot laws anyway. People should be free to ride motorcycles without helmets, because if they wish to offer themselves to the Organ Donor God more power to them. Our political class has gone way overboard with these nutty laws, such as bike helmets for bicycles (make bicyclists more reckless increasing accidents; and stats that suggest fewer injuries following such laws neglect to figure out that fewer people ride bikes if they have to wear a helmet) and a ban on cell phone use in cars (one study found it’s more dangerous to pull your car off the road every time you want to talk on the phone). Inform us of the danger and then let us decide for ourselves. Seat belts in cars are debatable because you could fly out the window and hit somebody, but still, mandate cars have to have seat belts, but we need more organs for transplants. I’d have no qualms whatever about receiving a Sikh heart.

    • As a small businessman who has to pull over pretty often to answer the ph i’d like to see that study you mention. Most of the time it makes a lot of sense for me to pull over, rush hr being the main exception.

  11. I agree with scissorpaws, all these nanny-state laws are wrong.

    That being said, I think that an employer has the right to dictate the requirements for a job. If a Sikh doesn’t want to wear a helmet, then maybe he should work for a different construction company, or start one of his own.

    • This isn’t a nanny state law. It’s a law to minimise the expense of workplace insurance for employers by setting a common standard.

    • I concur…why does society have to bend backward to accommodate every single religious faction just to be politically correct? In all jobs, if you do not fit the job requirement, then you don’t work there. How is it different with the ability to wear a hard hat? If you accept a job, then you abide by the rules and regulations that everyone else follow. If you cannot there are plenty of other choices.

  12. I have no problem with them not wearing a helmet – BUT only on condition that they fully pay 100% of their ambulance and subsequent hospital healthcare costs as well as all follow-up physio and recovery costs. If they turn around and say they don;’ have the cash, then deport them back to their home country and let them pay their medical bills.

    • I take it you DO approve of them paying their own way home. Or would you like to chip in? Yeesh! if much of the 3rd world had any real idea they’d stay away!!!

      • Why is it that as soon as there is any issue relating to people with colour of skin or a harmless head cover that people start talking in terms of "deporting" to their country, not realising some of these people might be born in Canada. If such a mindset is suggested for every crime commited ( no crime in this case) by a person without colour, Natives would have a party.

  13. You gonna go to bat for motorcyclists who don’t want to wear helmuts or is this another discriminatory thing sucking up to the left.

    • Depends whether that person’s job is riding motorcycles.

  14. I’m sorry, but why is this a legal issue? Can we seriously not invent a protective turban? I’m not trying to be humorous – it seems to me there should be some way to create a piece of headgear which satisfies the rules of the religion and safety.

  15. I think for me there are few questions that need addressing before I can accept the libertarian stance on this:

    1. Will employees have to waive the right to sue their employer (say just over head injuries). I think that, despite how it opens up a can of legal wrangling, is a prerequisite for something like this to work.

    2. I need to know to what degree accidents directly affect others. When somebody holding a ladder steady has a brick hit them on their unprotected head, both people suffer. Is this common or rare – and is it something we can define for particular workplaces?

    3. Is there a measurable compensating increase in attention to safety precautions among workers without hard-hats? That argument has been used against seatbelts by libertarians before (because the stakes of a crash are higher without seatbelts, people drive more carefully). Motorcycles are half as likely to be involved in crashes, but those crashes are 7 times likelier to be fatal (that is even higher in states without helmet laws, like mine). Does this increased caution also harm productivity?

    This policy will always benefit the (rational) individual worker, because it is voluntary, thus a worker would never waive their rights.

    This policy will only benefit employees if the advantages of legal wrangling, and increased worker caution outweigh the problem of lower productivity and multiple victim accidents. Whether that is the case is rather dubious.

    This policy will only benefit society writ large if lower accident rates compensate for a higher fatality/serious injury rate and do not substantially raise medical costs, workers compensation costs, and lost tax revenue if a worker dies or is injured.

    The first case is iron-tight, the second is dubious, and the third unlikely to support the libertarian case. Unfortunately, this is going to be decided by lawyers and judges who tend to eschew utilitarianism in favour of a discussion of rights, not costs and benefits.

  16. No more religion of any kind. In the name of religion more harm had come to man than from mother nature. For 3000 years all religion has created is hatered and war. Took me 65 years to realized I have been brainwashed by religious fanatics. Now you can stuff all religion.

  17. Sikh’s in their own Indian Military who fly in aircraft or who operate in armoured vehicles wear helmets for the obvious reasons of safety and communications. They wear a small ceremonial cloth underneath as an accomodation. What is the issue?

  18. I’m all for him not wearing a hard hat…what about the cost to the employer of the worker’s compensation when he gets injured, or the cost of the emergency care, ongoing rehabilitaion, retraining a new employee to cover for him, the financial/emotional strain on the family of the man with the dented head…it’s not like he can waive all medical services. What is the shift manager going to do when Deepinder is sprawled out on the concrete with blood pooling around his turban? Not call 911 because Deepinder can’t waive those rights, can he? Can you put a DNR on a completely healthy person? It’s just not going to happen like that. In this case, I think common sense outweighs religious freedom.

  19. Make Sikhs 100% responsible for their injury costs if they refuse to wear helmets.

  20. I agree with Geoff. When the Sikhs want to take 100% responsibility for any and all costs if they get hurt/killed while not wearing helmets (cycle) or hard hats that is fine but to expect us the taxpayer and employers to pick up the tab for their non-compliance with the law by not wearing the required equipment and protective gear is wrong is expecting to have your cake and eat it to doesn't work

  21. Religion should NEVER prevail over the law.

  22. ' The bosses must make a sincere attempt to reconcile religious requirements with the other laws they're required to follow.'

    If there is no place for religion in politics why then must an employer be forced to include religion in his place of business?

    Canada is a great place why is it so horrible for others to adapt to it?

    Personlly I beleive in God, I don't believe in religion and I don't accept or acknowledge religious doctrine especially since it's the written word of mans interpretation based on their geographical location. Honestly how ridiculous is that?

    It's time for Canada to make a stand, please, for the sake of our identity make a stand.

    I say with utmost respect to all, Canada's freedom allows you to express your views but it is an ignorant person who mistakes that freedom as an inviitation to impose thier views. This is Canada, the color of your skin enhances this nation, your religious views condemn it.

  23. 1-Employers could include in their contracts provisions to follow all safety regulations presently in force there (or not accept this job description) – worker's choise.
    2-As for medical costs why should it be society's burden to support the medical costs of someone who acts so negligently.
    3- There must be some sort of helmut that can be strapped around a turbin – perhaps large and uncomfortable but nevertheless safe.

  24. Fine!

    Then change the law so that EVERYONE has the choice!!!!!

    Because if he doesn't have to wear one because of his belief, Then it is discriminating against me by making me wear one! Because I don't BELIEVE I should have to wear one ether!!!

  25. It’s illegal to not wear a seatbelt which would only hurt me if I crashed so it should be illegal to not wear a hard hat. Our country has laws to protect us and it shouldn’t have to waste money on people with head injurys because they didn’t want to follow our laws to keep them safe.

  26. Then everyone should be able to make the exact same choice or it becomes discrimination to the rest of the citizens this is an equal world and no religion should take equality away from the rest of the people

  27. THE LAW SAYS YOU NEED TO WEAR A HELMET. IF SOMEBODY HAS A PROBLEM WITH THAT THEN GO LIVE SOMEWHERE THAT THE LAW IS DIFFERENT. I FIND THESE COURT CASES SO RIDICULOUS. WEAR A HELMET. THE LAW SHOULDNT CHANGE ON A PER PERSON BASIS

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