In Zanette v. Ottawa Chamber Music Society, 2024 HRTO 998, the Human Rights Tribunal of Ontario (HRTO) dismissed a volunteer’s application alleging discrimination with respect to employment because of sexual orientation, gender identity and gender expression contrary to the Human Rights Code (HRC). The HRTO was not satisfied that the volunteer experienced substantive discrimination on the alleged prohibited grounds, or any other prohibited ground under the HRC, when he was asked to remove a rainbow sticker, a symbol for the 2SLGBTQ2¹ community, that he had affixed to his volunteer name badge. Rather, the HRTO concluded that the Dress Code of the Ottawa Chamber Music Society (Chamberfest) applied to all volunteers and to any and all alterations to the name badge.

Background

A volunteer usher at a Chamberfest music performance was asked by a representative of Chamberfest to remove a rainbow sticker that he had affixed to his volunteer name badge.

Chamberfest maintains an Employee Handbook, which includes a “Respect in the Workplace Policy,” and a Volunteer Manual, which includes an “Anti-discrimination and Harassment Policy” and a “Dress Code” for its volunteers. The volunteer was aware of the provisions of the Volunteer Manual, including the Anti-discrimination and Harassment Policy and the Dress Code.

The volunteer contacted the General Manager of Chamberfest by email to discuss the request that he remove his rainbow sticker. Following an exchange of emails, the volunteer removed the rainbow sticker from his badge.

The volunteer alleged that the Chamberfest’s refusal to allow him to affix the rainbow sticker to his name badge was discriminatory conduct on the basis of sexual orientation, gender identity and gender expression. In response, Chamberfest argued that the request to remove the rainbow sticker was in accordance with its uniform policy.

Relevant Provisions of the HRC

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Relevant Legal Concepts

The onus is on the applicant to establish a prima facie case of discrimination on a balance of probabilities. The test for prima facie discrimination is:

• The applicant has a protected characteristic under the HRC;

• The applicant suffered disadvantage or adverse impact; and

• The protected characteristic was a factor in the disadvantage or adverse impact.

The applicant is not required to prove an intention to discriminate and that the protected ground was the only reason for the differential treatment. The applicant must prove only that an HRC-protected ground was a factor in the adverse treatment suffered by the applicant. 

HRTO’s Decision

At the outset, the HRTO acknowledged that the volunteer:

• was a member of a Code-protected group; he was “a member of and an advocate for the 2SLGBTQ2 community and the rainbow flag is a symbol for this community”; and
• was subjected to adverse treatment when he was asked to remove the sticker from his name badge.

The HRTO then determined that the primary issue was whether the volunteer’s HRC-protected characteristic (sexual orientation, gender identity and gender expression) was a factor in the adverse treatment (the request that he remove the rainbow flag/sticker from his badge). The HRTO stated:

Establishing a prima facie case of discrimination requires the applicant to establish that substantive discrimination has occurred. The foundation of establishing substantive discrimination is demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping.

…

Discrimination in the legal sense requires proof that the respondent’s adverse treatment of the applicant is differential and is based, at least in part, on the applicant’s sexual orientation, gender identity and gender expression or other prohibited ground under the [HRC]. In other words, there must be adverse treatment and the prohibited ground must be connected to the differential, adverse treatment.

The HRTO concluded that the request that the volunteer remove the rainbow sticker from his name tag was based on Chamberfest’s uniform policy, which applied to all volunteers; there was no evidence that the policy was arbitrarily applied to the volunteer because of his sexual orientation, gender identity or gender expression “or because [the rainbow sticker] was a form of advocacy for the 2SLGBTQ2 community.”

The HRTO also determined that the uniform policy did not amount to indirect discrimination (also referred to as constructive or adverse effect discrimination) under s. 11 of the HRC, which “occurs where a requirement, policy standard, qualification, rule or factor that appears neutral excludes or disadvantages a group protected by the [HRC].” It emphasized that the policy applied to all volunteers and all changes to the name badge, regardless of the nature of such changes.

Additionally, the HRTO stressed that the volunteer failed to establish prima facie discrimination based on sexual orientation, gender identity or gender expression because:

• Chamberfest had never allowed any changes to the name tags, “…consistent with [its] desire to protect its brand, from any incursion, as opposed to arbitrary and [HRC]-related decisions on what changes to its name badges would be permitted”; and
• wearing a rainbow sticker was not “an essential element of being a member of the 2SLGBTQ2 community.”

The HRTO concluded that because the volunteer’s sexual orientation, gender identity or gender expression were not factors in Chamberfest’s decision, and the decision “was not motivated by a bias, conscious or unconscious, against the 2SLGBTQ2 community,” the volunteer did not experience substantive discrimination on the basis of sexual orientation, gender identity or gender expression or another prohibited ground under the HRC.

Bottom Line for Employers

Ottawa Chamber Music Society demonstrates that to establish substantive discrimination, which must exist to establish a prima facie case of discrimination, it must be proven that the employer treated the employee differently and adversely based, at least in part, on a prohibited ground under the HRC. To avoid allegations of discrimination, employers are encouraged to (a) review their workplace policies, including their dress codes, to confirm their compliance with human rights laws, and (b) ensure that they are implemented in the same manner with regard to all employees and do not treat any employees differently and adversely based on a prohibited ground under the HRC. Finally, employers considering revising their dress codes or creating one for the first time, or any other workplace policy, should consider seeking the advice of experienced employment counsel.