Biometric Identification and the Duty to Accommodate

Employee rights case bumps up against employer's use of biometrics

The increasing use of biometric identification in the workplace has led to a number concerns regarding the extent to which employers are permitted to collect and use unique characteristics of employees, and concerns about the balancing of employee rights with employers' legitimate business interests. For instance, a number of adjudicators have considered the issue in the context of privacy rights. More recently, the issues have expanded to the human rights context, in particular, an employer's duty to accommodate employees where the use of the technology may conflict with their religious beliefs.

In 407 ETR Concession Co. v. C.A.W.,1 an Ontario grievance arbitration, three employees were reinstated after they had been discharged for refusing to enrol in the biometric hand scanner identification system, which the Company intended to introduce for access to, and within, the workplace. In this case, the Company had introduced a biometric scanner in order to improve security for its staff, to record more accurately employees' time keeping, to prevent time theft, to know which employees were in which parts of the building at any time, and to limit access to restricted areas of the building. Although infrequent, the Company had also received various threats of harm.

Based on the above, it was clear that the biometric scanners were being introduced for legitimate work-related purposes. However, the Union and the employees claimed the terminations were unjust because the employees were discriminated against by the Company on account of their religious beliefs. The employees were members of Pentecostal churches, which take the position that submitting oneself to biometric scanning is a matter of individual conscience. There is no precept of the church which prohibits one from submitting to biometric scanning, nor is there one which requires one to do so. However, the employees believed that the biometric scanning system to be used by the Company could impose the "Mark of the Beast" on them and, as a consequence, they would risk damnation. In the employees' view, taking the "Mark" would demonstrate their allegiance to the Anti- Christ, and their denial of their own faith.

Essentially, the Company treated the employees' refusals to enrol as insubordination and the employees were taken through a process of progressive discipline: first verbal counselling, then a written warning, then a one-day suspension, then a three-day suspension, then finally they were dismissed on May 18, 2005.

At arbitration, the Company took the position that it could not proceed with the new identification system if it had to accommodate the employees in the manner they wanted, and its only alternative was to jettison the system, which it contended would be an undue hardship. Further, although this case concerned only the three employees, the Company took the position that making exceptions for the three employees would constitute undue hardship, given indications received by the Company that other employees may also object to enrolment.

There was no dispute between the parties that, under the management rights clause of the collective agreement, but for the accommodation issues in this case, the Company had the authority to organize its workforce and its business affairs in the manner it considered best. Accordingly, the issue before Arbitrator Albertyn was whether the Company accommodated the employees to the point of undue hardship.

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