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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]

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