HRTO Finds No Discrimination in Request that Volunteer Remove Rainbow Sticker
October 22, 2024
| By
Emily Elder
Human Rights
Bottom Line
In Zanette v. Ottawa Chamber Music Society, the Human Rights Tribunal of Ontario (“HRTO“) found that requesting that a volunteer remove a rainbow sticker from his name badge did not constitute discrimination with respect to employment on the basis of sexual orientation, gender identity or gender expression under the Ontario Human Rights Code (the “Code”).
Background Facts
Mr. Zanette (“Applicant”) was a long-time volunteer at the not-for-profit Ottawa Chamber Music Society (“Respondent”). On August 1, 2019, the Applicant was volunteering as an usher at a music performance and affixed a rainbow flag sticker (the “Rainbow Sticker”) to his name badge as a symbol of support for the 2SLGBTQ2 community. A volunteer manager of the Respondent asked that he remove the Rainbow Sticker from his name badge, consistent with the Respondent’s “Dress Code” policy (“Dress Code”). After exchanging emails with the General Manager, the Applicant complied with the request. He continued to volunteer for the rest of the music performance and did not raise the issue directly with the Respondent again.
However, the Applicant filed an application at the HRTO, alleging that the request to remove the Rainbow Sticker from his name badge constituted discrimination with respect to employment on grounds of sexual orientation, gender identity and gender expression contrary to section 5(1) of the Code. The Respondent denied all allegations of discriminatory conduct.
Analysis
The HRTO dismissed the application, holding that the Applicant had not shown a prima facie case of discrimination. The HRTO accepted that the Applicant was a member of the 2SLGBTQ2 community, and that the request to remove the Rainbow Sticker was adverse treatment. Then the HRTO considered whether the Applicant’s Code-protected characteristic was a factor in adverse treatment.
Relying on evidence that the Respondent applied its Dress Code to everyone equally, the HRTO held that the Applicant’s sexual orientation, gender identity and gender expression were not factors in the adverse treatment. The HRTO found no evidence to suggest that the Respondent permitted any alterations to the name tags issued in the past, consistent with the Respondent’s “desire to protect its brand”.
The HRTO further reasoned that wearing a Rainbow Sticker on a name tag was not an essential element of being a member of the 2SLGBTQ2 community. While the HRTO accepted that the Applicant felt unfairly treated, it reiterated the long-established reality that it does not hold the power to deal with or remedy general allegations of unfairness.
As there was no evidence to suggest that the Applicant’s sexual orientation, gender identity or gender expression were factors in the Respondent’s request that he remove the Rainbow Sticker, the HRTO dismissed the application.
Takeaways
As this decision illustrates, in order to minimize risk of human rights liability, employers should ensure the consistent application of workplace policies, including dress codes. It is also imperative that the policy itself is non-discriminatory. Employers should also regularly update their policies – consulting with counsel if and as necessary – to ensure compliance with applicable human rights legislation and jurisprudence.
Need More Information?
For more information or assistance with Human Rights cases in the workplace or with workplace policies, contact your regular lawyer at the firm.
The author wishes to thank Advika Madhok, an Articling Student in the firm's Toronto office, for her assistance in preparing this Insight.
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