In a recent British Columbia Human Rights Tribunal decision, a customer’s complaint against a grocery store’s mandatory mask policy was dismissed because she refused to disclose any health information to support her claim.
While this decision comes out of British Columbia, as one of the first of its kind in Canada, it may provide guidance to businesses across the country in anticipation of similar potential challenges.
Customer Files Complaint Against Grocery Store’s Mask Policy
On September 28, 2020, the customer went into her local grocery store and was stopped by security because she was not wearing a mask. The security guard told her that the store had enacted a mask-wearing policy and she could put one on or leave.
The customer told the store security guard that she was exempt from wearing a mask because they “cause health issues”. When the guard insisted that she tell him what those health issues were, the customer told him they were private. The customer then told the guard that there were exemptions for health matters, that there was a duty to accommodate, and that health matters or disabilities were covered under British Columbia’s Human Rights Code. She further explained to the guard that masks cause breathing difficulties, and she was therefore exempt.
Despite her claims, the guard stood firm on her having to wear a mask or leave. The customer decided to leave the premises.
Subsequently, the customer filed a complaint with the British Columbia Human Rights Tribunal alleging that, in requiring that she wear a mask, the store had discriminated against her based on physical and mental disability, in violation of s. 8 of the Human Rights Code. She contended that the guard had not stated that the mask-wearing policy was necessary for public safety, and that, at the time, the government had not mandated masks in stores. Rather, it was a policy that the store had instituted independently. She claimed that the store had a duty to accommodate and that the “sudden and arbitrary decision to force customers to wear masks” was discriminatory. She alleged that the policy was “pointless” and discriminated against people with health issues. Finally, she argued that people should not have to give out personal health information to buy daily essentials.
Because the decision was a preliminary screening, the store had not been notified or asked for submissions on the complaint.
Tribunal Refuses to Hear Customer’s Complaint
At the outset, the Tribunal noted that it had asked the customer to provide more information about the nature of her alleged disabilities and how they related to her inability to wear a mask. In response, the customer had claimed that masks made it difficult to breathe and caused anxiety, but had refused to disclose any information about having a specific mental or physical disability. Instead, she had reiterated that she regarded health information to be a private matter that should not be disclosed to government bodies, including the Tribunal.
After reviewing the complaint, the Tribunal held that the customer had not set out a possible contravention of the Human Rights Code. While the customer had established an adverse impact regarding a service, wherein which she was not allowed to enter the store unless she wore a mask, the Tribunal held that she had not set out facts that could establish that she had a physical or mental disability that had been a factor in the adverse impact.
The Tribunal then stated:
“The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic. Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask-wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.
In this complaint, the Customer refuses to say whether she has a disability. She simply says that wearing a mask makes it “very difficult to breathe” and “causes anxiety”. This explanation, on its own, is not enough to trigger the protection of the Code.”
While the Tribunal agreed with the customer that any disclosure of health information should be minimal and strictly limited to the purpose for which the information is required, it explained that where a person is asking for human rights-related accommodation, that individual is required to bring forward the facts relating to discrimination. As such, the Tribunal explained that the customer’s refusal to explain whether she had a disability, and how that disability impacted her ability to wear a mask, resulted in a failure to set out facts which could, if proven, establish discrimination.
In anticipation of future similar complaints, however, the Tribunal did take note of the BC’s Office of the Human Rights Commissioner’s recommendation, which set out as follows:
“Where the relationship is brief, I recommend duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive personal information.”
In the result, the Tribunal refused to proceed with the complaint.
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