Biometric Identification and the Duty to Accommodate

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

One of the questions posed by Arbitrator Albertyn was whether the employees were required to prove more than the sincerity of their beliefs to establish that the beliefs are religious, and hence covered by the protection from discrimination on the ground of creed. In other words, to what extent must the employees' beliefs objectively conform to the precepts of the Pentecostal church for those beliefs to be protected?

In the arbitrator's view, the requirement of sincerity was a hurdle for the employees claiming accommodation on grounds of creed, however, in his view, the bar was not set very high. Arbitrator Albertyn explained that the assessment of sincerity is limited to ensuring that an asserted religious belief is in good faith, not fictitious, not capricious, and not an artifice. The arbitrator reasoned that, in this case, the employees sincerely believed that they could have driver's licenses and G passports, with digital photographs and numerical records of their names, addresses and dates of birth kept in a government databank, without in any manner invoking the "Mark of the Beast". Yet they could not submit to the biometric scanner of a private corporation, even if they wore a latex glove, or used their left hands.

With respect to the extent of the Company's accommodation, the Company had offered that the left hand be used, rather than the right, or the use of a latex glove. However, Arbitrator Albertyn found that the Company did not investigate changing the jobs of the employees, and had not engaged in any serious discussion with the Union as to how the employees might be accommodated.

In the arbitrator's view, the Company had misconceived the nature of the problem, as the employee's refusal, which should have been treated as a significant human rights issue, and not a disciplinary matter. In the arbitrator's view, there were options available to the parties to accommodate the employees which would not constitute an undue hardship. However, by treating the employees' refusal as a disciplinary matter, rather than a human rights accommodation, the Company unreasonably attenuated its exploration of options to accommodate the employees.

Based on the above, the arbitrator held that the biometric scanner discriminated against the employees on grounds of their creed. Further, he held that the accommodation sought by the Union and the employees - that the employees use the biometric scanner with a swipe card and password, without its biometric features - did not impose an undue hardship on the Employer. Accordingly, the Company had breached its duty to accommodate the employees to the point of undue hardship, and did not fulfil its obligations under the Human Rights Code.

The Arbitrator found that as a result of the breach, the employees were entitled to reinstatement in their employment, "subject to such organizational arrangements of their work as the Employer may reasonably require, without loss of earnings or seniority. The employees were also made whole for any loss of salary during this period".

Arbitrator Albertyn also provided the parties with some guidance in dealing with further cases of religious objection to the biometric scanner. He stated that the Company and the Union would need to establish whether those objections are founded in sincere religious beliefs. Having done so, the parties would need to explore with the employees concerned whether they would participate in the biometric scanner system on a modified basis. The options provided were the following:

- the employee concerned might enrol using the left hand, or a latex glove over the hand, or something else on the hand (such as a ring) to distinguish their own hand from that enrolled in the system;

- the employee might accept enrolment as long as the 9-digit template does not contain the numbers 666 (if this is technically possible); or