Explore Our Blog

Back to blog home
November 4, 2015

Forbidding religious avatars on coupon website is not discriminatory, Tribunal finds

5347580266_f1bd0f238d_zAfter a forum moderator asked a user to stop using a Jesus fish logo in his posts, the matter was put to the Ontario Human Rights Tribunal — which ultimately found no violation of the Code.

One of the more difficult things the Tribunal does is decide whether an activity triggers the Code’s protection from discrimination on the basis of religion. If it does, the Tribunal will then engage in additional analysis, but at the outset the question is whether the Code is engaged at all.

In Clipperton-Boyer v RedFlagDeals.com, 2014 HRTO 1796, the complainant’s avatar was a stylized fish accompanied by the words “Jesus Christ, God’s Son, Saviour.” He was a frequent commenter on the forum, and he used the logo for several years without any issues. After others complained, however, he was asked to change his avatar three times.

The logo violated the forum policy of the host website, RedFlagDeals.com, which forbids religious and political messaging on its site. While the policy may have a whiff of a kind of forced secularism, at the hearing RedFlagDeals.com defended its policy in the following way:

[T]he Forum Rules reflect the concern that off-topic postings relating to controversial topics such as politics or religion can lead to personal attacks, angry disputes and discriminatory remarks.

In the end, the wisdom of such a policy was not the central issue, because the Tribunal found that the religious protection was not engaged by the policy as it applied to this claimant.

Why? To understand the distinction, you have to understand that the Tribunal will only accept religious claims which fall into three categories. The claimant must prove: an activity is objectively required by his religion; or that he in his mind believes that the activity is required by his religion; or that “the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith.”

This test can sometimes put the Tribunal in a bit of an awkward spot. In the RedFlagDeals.com case, each of these categories was put to the applicant. He testified that the avatar gave him “a little spark”, and that it was comparable to a t-shirt or a tattoo. As the Tribunal concluded:

In my view, the applicant’s analogy of his use of the avatar to wearing a religious T-shirt or having a religious tattoo is apt. It is simply a personal and outward display of one’s religious beliefs that may make the person feel good and remind them of their faith, but does not engender any profound or deep connection to the divine.

Since the avatar was also not required by his religion, the Tribunal found that the policy wasn’t a violation of the Code on its face.

It may well be that the Tribunal underestimated the centrality of outward expressions of religiosity to some adherents. Certainly, it would have been a tougher case for the Tribunal to decide if evidence had been led about the importance of evangelizing among some Protestant denominations.

But at the end of the day, cases like this one are decided based on the evidence before the Tribunal, and applicants are required to put their best foot forward. Characterizing the nature of the religious practice at stake became the pivot on which the case turned. With a different characterization, the case may have been resolved differently.

Millard & Company specializes in employment and human rights law and has represented both applicants and respondents in many cases before the Ontario Human Rights Tribunal.

[Photo by Marcie Casas used under cc licensing]

Wrongful Dismissal

Lost your job?
We can help.

Learn More

Human Rights Complaints

Facing discrimination or harassment?
Contact us.

Learn More

Contingency Fees

Don't have the money to pay up front?
Let's talk.

Learn More


"It was an absolute pleasure to work with Ben Millard at Millard & Company Barristers and Solicitors. Before signing on to use his services he took the time to answer any and all questions we had so that we felt confident when choosing him to help us with our legal matter. Once we signed on, this did not change. He was always very quick to answer our questions or address our concerns. He was very quick to let us know our next moves and did not sit on anything which was well appreciated. Would recommend to anyone to use his services. Kind, courteous, and genuinely great person to deal with!"

- M. C.

"It was a great pleasure, and a great experience, for our not-for-profit organization to work with Marcus McCann to assist us to rewrite our by-laws. Marcus was professional, knowledgeable and understanding of our issues and committed to helping us to frame our new by-laws in the context of both our organization's vision, mission and values and the law as it relates to not-for-profit organizations. He was diligent, completed the work within the time frame we agreed upon, responded to phone calls and emails promptly, and was always courteous to me and my colleagues. I thoroughly recommend Marcus for any organization who needs legal assistance, particularly in developing by-laws."

- J. M.

"Within a day I was connected to Ben Millard and he walked me through the approach and compensation once he understood my circumstances. He negotiated a good deal and it was settled in less than three weeks (would have been faster except for summer holiday). He was always available for questions during the negotiation and will answer questions on any future contracts vis a vis the severance package. With Ben I know I got the best deal i could."

- T. S.

"This is the second occasion for me reaching out to Ben Millard for his employment related expertise. I greatly appreciate Ben’s clear and concise counsel. His ability to distill the relevant and important issues from all the “noise” makes working with him to be efficient and effective. I would not hesitate to recommend him for any employment law matters."

- T. W.