Article by: Nimrit K. Sian
Previously printed in the LexisNexis Labour Notes Newsletter.
In its November 17, 2021 decision in Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156, the B.C. Human Rights Tribunal (the “Tribunal”) dismissed a human rights complaint filed against Lululemon regarding its COVID-19-related mandatory masking policy.
Background and Decision
On November 10, 2020, Yvonne Coelho entered Lululemon without a face mask. At the time, the company had adopted a mandatory masking policy in response to the COVID-19 pandemic. A Lululemon manager stopped Coelho and advised her that she could not shop in-store without a mask. Coelho advised Lululemon that she had a medical exemption for masking and it was discriminatory to prohibit her from shopping in-store. Lululemon provided Coelho with alternative options such as shopping outside or online shopping.
Coelho (or her companion) filmed the interaction she had with Lululemon staff and submitted it to the Tribunal in support of her position. She argued that she has “a medical condition that enhances [her] stress response and leads to an increased risk of panic attack, namely anxiety and risk of panic attack due to claustrophobia”. Based on this, her naturopathic doctor issued her a note indicating that she had an exemption from wearing a mask. In her materials responding to Lululemon’s application to dismiss, Coelho explained that she enjoyed in-store shopping and preferred that manner of shopping. She added that at the time she was “in the store, being harassed and hassled, [she] could have shopped” and “[i]nstead, this unnecessary and unjust exchange took place”.
At the relevant time, there was no provincial mask mandate in place. However, COVID-19 cases were on the rise and sometime later – on or around November 19, 2020 – B.C. implemented its mask mandate.
Lululemon’s application to dismiss the complaint was allowed and Coelho’s complaint was dismissed.
Section 27(1)(c) of the B.C. Human Rights Code allows the Tribunal to dismiss complaints on a preliminary basis that do not warrant the time and expense of a hearing.
The Tribunal found that the naturopathic doctor’s note on which Coelho relied was vague, even when taken together with her own evidence about how wearing a mask affects her. In the context of the materials before it, the Tribunal agreed with Lululemon that it was reasonably certain the company would establish “the validity and non‐discriminatory nature” of its mandatory masking policy given its obligation to ensure the health and safety of its employees and members of the public, and the surrounding circumstances of a global pandemic.
The Tribunal noted that Coelho might disagree with Lululemon’s risk assessment and approach. However, her disagreement – and the existence of other potential approaches in the face of the then‐unknown virus which formed the basis for a provincial state of emergency – did not undermine Lululemon’s evidence about the masking policy’s rational connection to its goal and function. There was ample evidence of both the context and development of the masking policy, and no evidence before the Tribunal which could support a finding that the masking policy was not adopted in good faith.
The Tribunal was persuaded that it was reasonably certain Lululemon would establish that it had discharged its duty to accommodate Coelho. Lululemon was not obligated to provide a perfect accommodation, but only a reasonable one. Coelho had an obligation to participate in the accommodation process, and to accept solutions which were reasonable, without insisting on perfection. There was no dispute that Lululemon offered Coelho options alternative to shopping in-store. Coelho said, among other things, “I enjoy in‐person browsing, shopping, touching fabrics, fitting items, conversing with the staff, and having the in-store experience”. Her preference for in‐store shopping did not make Lululemon’s accommodation proposals unreasonable.
Takeaways for Employers
Many individuals have filed complaints related to the requirement to wear masks when seeking services. It goes without saying that service providers must develop policies to enforce their mask mandate. Service providers must also take steps to provide alternative options for customers rather than simply denying access to their establishment.
This case confirms that accommodation is a two-way street. Employers and service providers have a duty to accommodate but the individual seeking obligation must participate in the process and accept solutions that are reasonable. An accommodation can be reasonable even if it does not provide full access to the service, e.g. in-store shopping.
Service providers may not be well advised to ask for proof of a medical exemption – at least in the first instance. To avoid unduly complicating things, they should probably assume the individual can prove the medical exemption and offer alternative options such as, in appropriate cases, online shopping, curbside pick-up and customer service at the front of the store.
Nimrit K. Sian is a lawyer at the Vancouver-based employment and labour law firm of Roper Greyell LLP and practises in all areas of employment, labour and workplace human rights law. For more information about Nimrit and the lawyers at Roper Greyell, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.