Hairstylist Gets his Cut in Human Rights Decision

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With the help of the Commission des droits de la personne et des droits de la jeunesse, a Montreal man has prevailed over his former employer at the Human Rights Tribunal of Quebec. Richard Zilberg worked for six months as a hairstylist at Spa Orazen in Montreal before he was fired in August 2012 for refusing to observe Jewish sabbath.

Zilberg and Spa Orazen’s owner Iris Gressy are both Jewish. Zilberg often worked on Saturdays, until Gressy informed him of a new shop policy prohibiting Jewish employees from working on the Sabbath or from disclosing this prohibition to clients.

For personal reasons, Zilberg had chosen not to observe the sabbath. He told Gressy that he did not want particular understandings of Judaism forced upon him and that he would prefer to continue working on Saturdays. He was fired a month later, having told clients why his schedule had changed in breach of what Gressy called a confidentiality agreement.

The Tribunal brought to bear the Quebec Charter of human rights and freedoms and concluded that the employer’s decision to prohibit him from working on Saturdays infringed his freedom of conscience and religion under section 3, his dignity under section 4 and respect for his private life under section 5. The Tribunal also found a violation of section 16, which prohibits “discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment”.

Because the defendants chose not to appear before the Tribunal to rebut the claims, Zilberg was only required to demonstrate the veracity of his allegations on a balance of probability. On that assessment, the Tribunal readily found that “The decision to forbid Mr. Zilberg to work on the Sabbath because he is Jewish violates his right to equality in employment due to his religion; The dismissal of Mr. Zilberg is based, in part, on religious grounds [and] The decision to forbid Mr. Zilberg to work on the Sabbath because he is Jewish violates his rights to freedom of conscience and religion as well as to the safeguard of his dignity and the respect for his private life”.

The Tribunal cited R. v. Big M Drug Mart Ltd., where the Supreme Court wrote that “la liberté de religion comporte le droit de ne pas être astreint à l’observance religieuse”; freedom of religion does not concern only the right to practice one’s religion but includes the right to abstain from a particular religious observance. While Big M involved Sunday closing laws imposed by a government actor in Nova Scotia and was dealt with under the Canadian Charter, the analysis applied to Zilberg’s case because private actors like employers are subject to the Quebec Charter.

The Tribunal found that Zilberg was entitled to $6,006 in material damages, compensating him for 26 weeks of lost income from the salon rather than the 52 he requested. Noting that “Le dommage moral ou extrapatrimonial est souvent difficile à chiffrer d’une manière exacte ou même approximative,” the Tribunal found that “$4,000 is the appropriate amount to award Mr. Zilberg as compensation for the moral prejudice that he suffered and which was the direct result of the Defendants’ violation of sections 3, 4, 5, 10 and 16 of the [Quebec] Charter.”

Reasoning that Ms. Gressy “was well informed of the implications should she decide to proceed with her decision to forbid Mr. Zilberg to work on Saturdays because of religious reasons” and invoking section 1621 of the Civil Code of Québec, the Tribunal also ordered Ms. Gressy to pay $2,500 in punitive damages—a measure with the “preventive purpose” of disincentivizing such right infringements in the future.

The original judgment from the Human Rights Tribunal of Quebec is available here. This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.