A Woman, A Barber Shop and A Human Rights Commission

A story about a Barber Shop refusing service to a patron based on religious reasons is winding its way through the news cycle. This is the first I have heard of the incident, though it appeared to have happened almost two weeks ago. A woman wanted a man's style haircut; the Barber shop she choose is operated by observant Muslims; they refused her service because they are restricted in the manner that they may interact with women. No one in the shop could touch her, no touching no haircut. The women has filed a gender discrimination complaint with the Human rights commission. The relevant section can be found in The Human Rights Code Part 1, Freedom from Discrimination; services 1;

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1 

The barber shop, by refusing service to this women has violated this section. I could find no section where religious obligation exempted adherence to  provisions of the Human Rights Code.

So what do we do when rights conflict? The Human Rights Commission is going to be asked to rule on primacy of Rights. The Charter of Rights and Freedoms guarantees religious freedom; belief and practice. I am not sure if Section 15; equal protection and equal benefit of the law, extends to private citizens offering services to the public. We have seen a slow erosion of discrimination based on race; accommodations or jobs. We expect public and private facilities to be accessible to the physically impaired. The right to discriminate on religious grounds is the present conflict zone. 

What of accommodation? There are many barbers who would happily cut her hair. She was denied the services in one shop, not all shops. Is it in our interest to allow some discrimination an religious grounds? Especially in cases where their is ample alternatives available to the offended party. We already make some  exceptions regrading race, gender and religious discrimination. I would not force an all female only health club to except men. I support affirmative action; on racial and gender grounds,that is discrimination; though towards a positive end.  I certainly would never force a Church, Mosque or Temple to marry a Gay couple. 

The right to refuse a service because of religious reasons versus the right to equal treatment. This conflict has found expression in the case of a marriage commissioner refusing to provide services to gay couples, the Courts ruled that you do your job or your lose your job. The Courts did not recognize religious belief as valid excuse for discrimination. A government has an obligation to uphold fair treatment in the providing of services to its citizens. How well this translate to private persons providing a public service is not always clear. In British Columbia the Human Rights Tribunal ruled against a taxi cab operator who refused, on religious grounds, service to a blind man and his work dog. Again in BC a gay couple, by way of the HRT successfully sued a B&B for refusing them service. 

If you take these cases as indication of a trend it would appear that the Religious defense, an expression of conscience is not sufficient to exempt a business from charges of discrimination. That discrimination if allowed must provide a tangible benefit to the wider community.The HRC has its hands full with this case. in attempting to find a balance between the right of belief with right of access. 

 In Addition: With respect to discrimination rulings, religious or otherwise; the standard applied seems to be that any discrimination that is negative in practice and places an unreasonable burden on an individual, group or class of citizen should not be tolerated. In the absence of such a burden accommodation of some type should be sought.