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Article

Biometric Hand Scanners vs. Religious Rights

Date

July 16, 2007

AUTHOR(s)

Daniel Pugen


When must an employer accommodate an employee’s religious beliefs? What if the employee’s religious belief is not a "mainstream" religious belief? A recent decision by an Ontario labour arbitrator indicates that an employer must accommodate employees’ "sincerely held" religious beliefs, even if those beliefs are not part of a "mainstream" religion.

This important decision arises out of an employer’s attempt to implement a new security system which used a biometric hand scanner to identify employees. The arbitrator ruled that the employer had to accommodate the employees who refused to use the biometric scanners for religious reasons. He also found that the employer failed to comply with its duty to accommodate the employees’ religious beliefs to the point of undue hardship.

The Biometric Scanners

407 ETR Concession Company Ltd. (Employer) operates the 407 toll highway in the Greater Toronto Area. The Employer introduced biometric hand scanners to control access to, and movement throughout, the workplace. The Employer’s previous security system consisted of personalized "swipe cards." The Employer was concerned about the security and safety of its facility, and also that employees were misusing the existing swipe card system and engaging in time fraud. In addition to enhancing security, the biometric hand scanners were to be linked to the Employer’s computer attendance management system and to its scheduling software.

The biometric scanners implemented by the Employer used infrared light to take an image of the employee’s hand from various angles. The scanner took 91 measurements of the hand’s length, width, thickness and surface area. These measurements were then converted into a nine-digit algorithmic number stored in the biometric scanner’s memory. No image or picture of the employee’s hand was stored in the system, only the nine-digit number. Neither the employee nor the Employer knew the nine-digit number assigned to the employee.

The Employees’ Religious Beliefs

The three employees who refused to use the biometric scanners were members of the Pentecostal faith. They asserted that a tenet of their faith was that individuals were to avoid being "marked" by three sequential sixes — 666 — which they believed to be the "mark of the Beast," particularly on one’s forehead or right hand. According to the employees (and expert testimony provided by a Pentecostal pastor), since the biometric scanners generated a nine-digit number for each employee’s hand, the biometric scanners could impose the "mark of the Beast" (i.e., 666) on them and, as a consequence, they would risk damnation.1

The employees claimed that using the biometric scanners conflicted with their religious beliefs. When the employees refused to use the biometric scanners, the refusal was treated as insubordination by the Employer. The employees were progressively disciplined until their employment was terminated. The terminations were then grieved.

Were the Employees’ Beliefs Protected under the Human Rights Code?

The arbitrator first had to decide whether the employees’ religious beliefs could be considered a "creed," and therefore subject to the protections of the Ontario Human Rights Code (Code). The evidence provided by the employees and expert testimony indicated that not all followers of the Pentecostalist faith believed they were under an obligation to refuse to participate in the biometric hand scanner program.

Somewhat reluctantly, the arbitrator relied on the Supreme Court of Canada’s recent decision in Syndicat Northcrest v. Amselem, where the majority of the court had found that an individual must only establish that their religious beliefs are sincerely held in order for those beliefs to attract human rights protection. The arbitrator himself preferred the dissenting judgment in Amselem, which held that (i) there must be a reasonable belief in the existence of a religious precept, and (ii) the claimant must sincerely believe that he or she is under an obligation to follow that precept.

In the case of the Pentecostalist employees, the arbitrator found that the employees’ beliefs were "sincerely held" religious beliefs. Therefore, the employees were entitled to the protections against discrimination in the collective agreement and under the Code, and they were entitled to have their beliefs accommodated.

Accommodation to the Point of Undue Hardship

After determining that the employees’ beliefs were protected against discrimination under the Code, the arbitrator had to determine whether the Employer had accommodated the employees’ creed up to the point of undue hardship.

The Employer attempted to accommodate the employees in numerous ways. The employees were offered the option of using their left hand rather than the right hand (an option that was successful in a U.S. employer’s implementation of biometric hand scanners). The Employer also gave the employees the option of wearing tight fitting gloves around their hands when using the biometric scanners so that the resulting algorithm would not relate to the employee’s actual hand. However, the arbitrator found that these alternatives were contrary to the employees’ sincere religious beliefs, which prohibited the taking of any measurement of a body part that would be quantified by a number.

The arbitrator concluded that the Employer failed to adequately explore all reasonable alternatives for accommodating the employees. In particular, the evidence of the Employer’s own witness, a representative from the manufacturer of the biometric scanner system, indicated that the system could be modified to include a swipe card and password system for the objecting employees. This was an option that the Employer had never explored or considered.

The arbitrator discussed various methods of rearranging the workplace, scheduling and accommodating the employees so that they would not have to pass through the workplace (and thus use the biometric scanners) to accomplish their duties. These options included having supervisors accompany the employees while travelling in the workplace, moving office equipment to the employees (e.g., fax machines) so that the employees would not have to access areas of the workplace protected by the biometric hand scanners, and arranging for other employees to meet the employees’ customers instead of the grievors leaving their work area. The arbitrator noted that if only the three grievors would be using the swipe card and password system instead of the biometric scanner, any security or "time fraud" concerns could easily be resolved. According to the arbitrator, as long as only a small number of employees were using the swipe card/password option, the biometric scanners would still be viable and the Employer would not be subject to undue hardship. Although the union advised that some 25 other employees were expected to object to using the biometric system on the basis of their religious beliefs, the arbitrator found that he was not in a position to decide that issue in the present case since no evidence had yet demonstrated undue hardship for the Employer.

The Result

The arbitrator found that the employees were discriminated against on the basis of their "creed" and that the accommodation sought by the union — that the grievors use the scanners with a "swipe card" and password, without its biometric features — did not pose undue hardship on the Employer. In the result, the arbitrator allowed the grievances, reinstated the three grievors with full back pay and ordered the Employer to work out an acceptable accommodation with the union and the grievors.

It is interesting to note that the union did not argue that the employees’ privacy rights were infringed by the use of the biometric scanners. Existing case-law is not consistent on the issue of whether biometric scanners infringe upon an employee’s "privacy interests."

Lessons for Employers

This case sets out a clear test for determining whether an employee’s religious beliefs constitute a "creed" under the Code. A decision-maker need only consider whether the employee’s beliefs are "sincerely held." If so, the employee will be entitled to the protections of the Code and to accommodation up to the point of undue hardship.

This case also once again demonstrates that employers must show they have considered all options for accommodating employees in accordance with the Code. In this case, the arbitrator found that the Employer had mistakenly focused on disciplining the employees for their refusal to enrol in the biometric system, rather than seeking to accommodate the employees. Unless an employer has properly investigated and considered the accommodation options available, it is highly unlikely that the employer will be successful in asserting undue hardship.



1
According to the union, the situation could be distinguished from taking digital photographs for company identification cards and drivers’ licenses (to which the employees did not object) because a digital photograph was merely an “image” which could change over time while the measurements taken by the biometric scanners resulted in a permanent “mark” or “imprint” which could not change over time.

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