Disallowing Kilts While on Duty Does Not Equal Discrimination

In Macdonnell v Waterloo (Regional Municipality), the Human Rights Tribunal of Ontario (“HRTO”) determined that the Responding employer did not discriminate against the Applicant employee when it prohibited the Applicant from wearing a kilt while on duty.

The Applicant, a Bus Operator, wore a kilt to work on a casual Friday. He did so knowing that his actions were contrary to a workplace policy forbidding the wearing of kilts while on duty. Upon attendance at work, the Applicant’s Supervisor requested that he go home to change. The Applicant did so, without losing pay and was not subject to further discipline. The Applicant subsequently filed an application with the HRTO claiming discrimination on the basis of Ancestry.

At the hearing, the Applicant testified that while he was a Canadian citizen, his ancestry was Scottish. To illustrate that he followed the practices of his heritage, the Applicant testified that “he often listens to Scottish music and he eats haggis. He was married wearing a kilt, which in his view illustrates how important the kilt is to him as part of his ancestry. The applicant testified that he also wore a Balmoral hat with a badge from his grand-father showing he served in the Argyle Highlanders when he got married.”

Nevertheless, the Applicant explained that he did not often wear a kilt, and maintained that wearing a kilt was not intimately connected to his Scottish Ancestry. In fact, the Applicant acknowledged that he did not own a kilt, but rented it for the casual Friday.

In dismissing the Application, the HRTO concluded that the Applicant failed to adduce evidence necessary to satisfy the Tribunal that wearing a kilt to work was an integral part of his heritage or ancestry. In particular, the Applicant acknowledged that wearing a kilt was not compulsory for someone of Scottish ancestry and further that a kilt was not intimately connected to his Scottish heritage.

Takeaways for Employers

This is a helpful case for employers in that it reaffirms a number of basic human rights principles:

  • An Applicant has the onus of establishing a nexus between a ground cited and differential adverse treatment;
  • The Tribunal does not have a general power to deal with allegations of unfairness;
  • Unfair treatment is not discriminatory under the Human RightsCode unless there is evidence that one or more of the protected grounds were a factor in the conduct complained of; and,
  • Not all personal characteristics qualify as a right protected under the Human RightsCode.

Employers must remember to consider these basic principles when responding to any claim alleging discrimination on the basis of the Code.

Should you have any questions regarding Human Rights or your Human Rights Policies please contact one the members of our Ontario Labour and Employment Law Group.



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