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Margot Young, UBC School of Law

Reasonable, not ideal, accommodations required in mask exemption cases: B.C. human rights tribunal

Tuesday, November 30, 2021 @ 9:11 AM | By Ian Burns

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A pair of decisions from British Columbia’s Human Rights Tribunal are emphasizing the fact that store policies which mandate the wearing of masks generally do not violate human rights law and that people cannot “simply do what they please” in a store.

The two cases, Coelho v. Lululemon Athletica Canada Inc. 2021 BCHRT 156 and Ratchford v. Creatures Pet Store 2021 BCHRT 157, involve individuals who were shopping at stores which had adopted a mandatory mask‐wearing policy in response to the COVID‐19 pandemic and claimed that they had medical concerns which precluded wearing masks. After being denied service, both brought complaints to the tribunal claiming their rights had been violated under B.C.’s Human Rights Code.

But in both cases, tribunal chair Emily Ohler emphasized the stores had taken reasonable steps to accommodate them, such as bringing in curbside pickup or offering online shopping, and that such rules are acceptable if they're adopted in good faith in order to protect staff and customers from COVID-19.

“If a complainant establishes that they experienced a disability‐related adverse impact — such as not being able to wear a mask and being barred from entering premises as a result — this does not then entitle the complainant to simply do what they please. Rather, it requires the respondent to reasonably accommodate the complainant to try to mitigate that barrier,” she wrote in Coelho, which was issued Nov. 17. “The fact that Ms. Coelho said that she could not wear a mask did not give her an ‘exemption’ from the mask policy that allowed her to simply disregard it and enjoy unfettered, maskless physical access to Lululemon’s stores, which is what she appeared to assert.”

In the other case complainant Karleigh-Laurel Ratchford, who claimed to have asthma, refused a $5 face covering offered by store employees — and according to court documents, raised her voice, told the employees they were breaking the law and said wearing a mask will lead to her passing out and “smash[ing] my head on your damn floor where you’ll then be sued tens of thousands of dollars for forcing me to jeopardize my health.”

But once again Ohler held the store was in the right.

“Creatures Pet Store was not obligated to provide an ideal accommodation to Ms. Ratchford,” she wrote in the second decision, which was also issued Nov. 17. “Ms. Ratchford had an obligation to participate in the accommodation process, and to accept solutions that were reasonable, without insisting on perfection. What is reasonable and what constitutes undue hardship is fact specific and will turn on the specific circumstances of a particular case.”

Margot Young, UBC School of Law

Margot Young, a professor at the University of British Columbia who specializes in human rights law, said reasonable accommodation is taken by courts and others as being up to the point of imposing undue hardship — and stores don’t have to go broke in order to reach that plateau.

“It looks like these complainants are focusing on the idea of ‘I should be able to do whatever I want to do,’ and then they try to shape their complaints into being about discrimination on the basis of disability,” she said. “But I don’t think there is going to be a tribunal in the land which will see shopping for stretch pants at Lululemon is the kind of extraordinary circumstance that demands really tight and extensive accommodation requirements.”

The B.C. Human Rights Tribunal has been open about the fact it has been swamped with COVID-19 complaints and has even gone so far as to detail what the provincial Human Rights Code protects, noting it only assists people who cannot wear a mask because of a protected characteristic like a disability and that masking rules do not discriminate if evidence supports the need for the rule, it is made in good faith and the employer or service provider offers reasonable accommodation.

Young said people are very quick to say their rights have been infringed these days, but that argument is being used “wide range of circumstances for which it is just simply inapplicable.”

“We are hearing not only about claims of discrimination under human rights legislation, but there are also Charter cases and the notion of individual liberty and freedom of expression is essentially being brought in as tools to protest the public health measures on COVID-19,” she said. “These cases do illustrate how much the notion of rights and discrimination has become part of the lexicon of the assertion of what you want personally and politically.”

Coelho and Ratchford were both self-represented in their actions. Counsel for Lululemon declined comment.

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