Update on the Use of Religious Headwear during Soccer Matches

We have been following this issue since it first arose in 2012, when the Quebec Soccer Federation (QSF) issued a rule prohibiting its players from wearing turbans and other religious headgear.  This discriminatory ban prompted the Canadian Soccer Association to suspend the QSF’s membership with the national body in April, 2013, thereby denying them the ability to compete at, participate in, or host competitions either provincially or nationally.

In a June 2013 blogpost, we outlined the jurisdictional, human rights and communication issues related to the QSF decision and discussed the consequences of the CSA’s response.  The QSF ultimately rescinded their ban on turbans, resulting in their suspension being lifted by the CSA.

However, despite rescinding their ban, the QSF continued to maintain that their decision was not discriminatory in nature, but was one that was made out of safety concerns for their players. This safety issue has been an ongoing debate amongst those involved, and as we discussed in our June newsletter, compelling empirical evidence is required to make such an argument, not just anecdotal observations.

Now, finally there has been an official announcement made by the international governing body (FIFA) that clearly states their position on the matter.  This announcement came on Saturday, March 1, 2014 when the Secretary General of FIFA stated at a press conference that “it was decided that the players could have their heads covered for play”.

FIFA says they have conducted a twenty-month study wherein they concluded that the risks of sport injuries from turbans, hijabs and kippas were not significant and did not justify a ban. It is not yet known how this study was conducted, or how the decision will be implemented or communicated to the varying levels of soccer organizations, but FIFA has indicated that it does intend to communicate the details of their decision.

FIFA’s decision could not have come at a more opportune time, as Canada is set to host the 2014 FIFA U-20 Women’s World Cup this summer (August 5th to August 24th) in Montreal, Toronto, Edmonton and Moncton.  It is expected that teams from 16 nations are going to attend. We will be watching to see the world’s reaction should players show up at the tournament with religious headwear, if any injuries occur as a result, or if anyone decides to protest this most recent decision.

Jurisdiction, Turbans, and Soccer in Quebec

by Sport Law & Strategy Group

Since last year, the Quebec Soccer Federation (QSF) has prohibited its players from wearing turbans and other religious headgear. This April, the Canadian Soccer Association (CSA) reminded all provinces to permit the religious headgear and warned the QSF to comply with this directive. But earlier this month, the QSF upheld its ban on turbans so, in response, the CSA suspended the QSF’s membership with the national body.

This evolving scenario serves as an interesting national-scale case study for a number of different areas, namely: jurisdiction, human rights, and communication. The potential impacts of these developments are immense.

Jurisdiction

Quebec Premier Pauline Marois is quoted as saying that “[The QSF] is autonomous, not subject to the Canadian federation and, in this regard, I support it in its orientations [to ban the wearing of turbans]”. The Premier went on to assert that the suspension of the Quebec federation for such a ban is unacceptable and that the QSF has a right to set its own rules.

With respect to the Premier’s comments, it is necessary to realize that amateur sports in Canada, particularly national sports, are both monopolies and private tribunals. This means that the CSA is empowered to determine its own rules for belonging to the national body, determine the criteria for membership, and then discipline members when those members do not meet certain obligations. In return, the members determine the purpose and objectives of the organization, approve amendments to bylaws and other high level policies, elect Directors, and so forth.

Within the CSA, the QSF falls into the ‘Association Membership’ category which is provided to every provincial/territorial soccer association in Canada. To be such a member, the QSF must submit an application and agree to a list of rules and regulations that are required for membership – as well as accede to a list of obligations once membership has been approved. These rules include agreements that the QSF is properly incorporated, will agree to the Laws of the Game, will respect the CSA’s decisions and regulations, etc. In return, the QSF is permitted to have voting rights, nominate Directors, take part in CSA competitions (like National Championships), and exercise other rights as specified in the CSA bylaws.

Further, the CSA’s bylaws outline ways in which a member may be suspended, including but not limited to “violating its obligations as a Member”.  In addition, the CSA’s bylaws prohibit other members from “maintaining relations of a sporting nature with … Members that have been suspended”. This section means that other Association Members (like The Ontario Soccer Association and Soccer New Brunswick) may not interact with the QSF. This rule is commonly known as a “tainting rule” and is very common throughout sport, being one of the key levers that is used to uphold and maintain amateur sport’s monopoly.

Essentially, the QSF is only subject to the CSA’s rules if it wants to remain a member of the CSA. But without QSF membership in the CSA, there may be significant issues for soccer in Canada in the near future.

Human Rights

The QSF’s initial argument is that wearing religious headgear on the soccer pitch is a safety issue and, since there is no explicit directive from FIFA (the international governing body for soccer) about whether the headgear is banned or allowed, the QSF may apply the international rules however it wants in the best interests of safety.

The QSF cited the potential for injury, but was not aware of any cases of where a soccer player was injured because he or she was wearing religious headgear.

Since the QSF offers services to the public it must do so under the jurisdiction of human rights legislation in Quebec and, in Quebec, one of the prohibited grounds for discrimination is religion. That a group is banned from participating in the QSF’s services because of its religious headgear could result in a claim of discrimination against the QSF. The QSF would then have an opportunity to prove that the discrimination was justified (and presumably the safety angle would be a possible justification). However, the state of human rights law in Canada today is that such arguments of justification for discrimination must be based on compelling empirical evidence, not just anecdotal observations or casual expressions of concern. Without compelling evidence that the wearing of religious headgear poses a measurable and significant safety risk, there can be no such justification argument. Furthermore, even if there were empirical proof of a safety risk, QSF would also have to demonstrate that QSF and its member clubs could not accommodate the wearing of religious headgear without suffering undue hardship.

Communication

When a potentially controversial decision is made, most reasonable people are able to understand the decision if there is a clearly articulated argument based on its merits. The decision would be communicated alongside the reasons why the decision was made. Reasonable people would then read the decision and debate the accompanying reasons. Such a process helps an organization, especially a volunteer-run sports organization beholden to its membership, demonstrate transparency in its decision-making and service to its members.

There are two decisions that have been made in this scenario (so far) and they contrast. First, the QSF decided to uphold its ban on turbans. Second, the CSA suspended the QSF.

In its statement, the QSF referred to reasons of “safety” yet could not identify a situation in which a player had been injured because of religious headgear. The QSF also referred to vague directions from FIFA as to whether religious headgear is permitted. Both claims have little substance. Reasonable people are not able to see any connection between safety and wearing religious headgear because it has been permitted in other provinces with no negative impacts or injuries. Since that ‘reason’ is not debatable, some individuals will begin to create and debate ulterior reasons for the religious headgear ban – even if those reasons are more nefarious. The FIFA claim can be debated, but the QSF is not a member of FIFA – the QSF is a member of the CSA. The organization should be following the national body’s interpretation of the international rules, and not its own interpretation of the international rules.

The CSA’s decision has been communicated with more tact and elegance. The CSA first privately asked the QSF to reverse their decision to ban religious headgear and, when that was not successful, issued a public suspension with reasons. The reasons pointed to the QSF’s membership with the CSA as well as the CSA’s directives that were not being followed. We understand that the CSA also issued a directive to other provincial/territorial soccer bodies explaining the decision as well as the consequences for organizations that interact with the QSF while it is under suspension. Here, again, the decision and its reasons were explained clearly and organizations can debate the decision on its merits.

Impact

Within the CSA’s bylaws, the consequences for a suspended member are listed. Some of these sanctions can be operationalized as:

  • Prohibiting competition against other provinces
  • Prohibiting competition in national championships
  • Prohibiting participation in, or hosting of, international competitions or tournaments
  • Prohibiting CSA officials to referee QSF competitions
  • Prohibiting QSF to vote at CSA meetings
  • Prohibiting access to hearing and disciplinary matters

Practically, the ban is a potential nightmare because in less than two months Quebec is scheduled to host the Canada Games (which includes a soccer tournament). Decisions on Quebec’s, and other province’s, participation in this event will need to be made in the very near future. As well, Montreal is one of six cities that will be hosting the 2015 FIFA Women’s World Cup of Soccer, which will be the largest sporting event ever to be held in Canada. The test event for the World Cup is the 2014 FIFA U20 Women’s World Cup, for which Montreal is one of four host cities. The CSA’s sanctions will prohibit the QSF from hosting any of these events.  We acknowledge, however, that it may be possible for CSA to take steps to sanction matches held on soccer pitches in Quebec without the involvement of QSF, provided that such events not involve any teams or players who are registered with QSF.

This quick summary of high-level impacts does not do justice to the many competitions, at all levels of the game, involving QSF teams competing outside Quebec or other teams competing in Quebec that will not be played because of the suspension. Thousands of soccer players and their families will be adversely affected. We are carefully watching this issue unfold and we are hopeful for a result that strengthens both organizations.

CCES Publishes Exploratory Paper on Gender Inclusivity

By Rachel Corbett.

In late October 2012 the CCES (Canadian Centre for Ethics in Sport) released its report, Sport in Transition: Making Sport in Canada More Responsible for Gender Inclusivity. The report documents an exploratory conversation among a select group of experts on how sport in Canada can be more inclusive of gender-diverse athletes. This is an important topic that we have covered extensively in our own writings on this website, and we welcome the conversation. However, the report is long on ethical musings and short on practical guidance. It advocates full inclusivity (any athlete should be able to participate in their chosen gender) but does not address the practical implications of such an approach. In my view, inclusion must be balanced with competitive fairness, and finding that ‘sweet spot’ in all situations is no easy feat. Full inclusion will work in most cases but not all. Check out this report and engage in the conversation!

Including Transgendered Athletes in Sport

By Rachel Corbett.

I would like to heartily congratulate the Canadian Collegiate Athletic Association (CCAA) for creating an inclusive policy at their most recent annual meeting that will enable transgendered student-athletes to participate in college sports.  The policy (which we have excerpted here) provides valuable background information that includes definitions related to gender identity as well as a rationale for why the CCAA has chosen to address transgender issues in its athletic programs. The CCAA is to be commended for their progressive and inclusive approach – and I would also add that the vote to endorse the policy was unanimous.

Having worked with sport organizations for nearly two decades on issues such as diversity, discrimination, equity and homophobia, I can assure every sport leader reading this blog that your organization WILL need to address transgender inclusion at some point, if it has not already. So read on!

A handful of NSOs in Canada have policies for transgender athlete participation, but these policies have typically relied on the IOC definition of gender reassignment (as having to include anatomical surgery) and have borrowed heavily from the IOC’s restrictive 2004 consensus statement on gender reassignment in sports. We applaud the CCAA for basing its approach to transgendered student-athletes on the NCAA’s much more moderate policy; a pragmatic, realistic, and more importantly, fair protocol.

The CCAA’s policy for transgendered student-athlete participation in college sports has arrived just as Ontario’s government voted to include ‘gender identity’ and ‘gender expression’ in the province’s Human Rights Code. The change was implemented specifically to extend the Code’s protections to transgendered people and make discrimination on these two bases a violation of the Code. Notably, all three political parties voted to update the Code. Also noteworthy is that the vast majority of NSOs and MSOs have head offices and administrative operations in Ontario, placing them squarely within the jurisdiction of the Ontario Code and its new amendments.

Earlier this year, I assisted the Ontario Soccer Association (OSA) with two situations of transgendered athlete participation in clubs within the OSA. After some education and discussion, the OSA was equipped with the tools to handle these new issues and, at the same time, passed their own policy revisions to enable transgendered persons to participate in OSA programs. A curious aspect of this development was that I distinctly recall advising their board of directors that this issue was coming and they might want to think about it … and their response five years ago was one of incredulity. Now they are leading the way among provincial sport bodies with a sensible, workable, and fair policy.

There are several resources on this web site for organizations looking for more background on this subject:

Recently, I have been invited to work with a small committee representing public and separate school boards in Niagara and the regional secondary schools association (NRHSAA) to advise them on eligibility policies for transgendered high school students who want to participate on sport teams. Ultimately our work here might make its way up to OFSSA, thus affecting high school student-athletes all across Ontario.

I would encourage all sport organizations to begin thinking about transgendered athletes and how your existing rules might (or might not!) accommodate their participation. Please feel free to contact me for further information.

International Weightlifting Federation (IWF) Paves the Way in Creating a More Inclusive Sport Environment

By Rachel Corbett.

I am in Ottawa this weekend participating in the centennial celebrations of the Canadian PGA, and I had the opportunity to have lunch with my friend and colleague Moira Lassen, who is an international official with the sport of weightlifting and a member of the IWF’s Technical Committee.

Moira had just returned from the World Junior Weightlifting Championships in Malaysia and she shared with me the upbeat news that the IWF (a very traditional organization serving a masculine sport if ever there was one) has recently taken a huge step forward to be inclusive of different genders and cultures.

This development was a leading story in many Arab media outlets but did not really register here in Canada. But it is significant – and for those of us tired of the patriarchal sport rule-makers who want female badminton players to compete in skirts and female beach volleyball players to compete wearing almost no clothes at all, it is refreshing.

On June 29, 2011 the Congress of the IWF revised their rules to allow any competitor to wear a one piece, full-body unitard that will cover the knees and elbows. It may be of any solid colour (a patterned colour would potentially interfere with an official being able to confirm that a lift has been executed cleanly). Over top of this the competitor must wear the compulsory weightlifting costume of singlet and shorts, but they no longer need to be close-fitting as was stated in the previous rules.

Head gear of any type may also be worn – interestingly, there was never a prohibition on head gear in this sport but the new rules have clarified that any head gear is now considered to be a part of the competitor’s body for the purpose of determining the clean execution of a lift (the barbell must be above the top of the hair and above any other item that is covering the head).

The issue was brought before the IWF by the United States Olympic Committee and USA Weightlifting, in support of an American Muslim competitor. The new rules take effect immediately and will have a considerable impact in September 2011 at the Arab Games. Twenty-two Muslim nations will compete at these Games, ten in weightlifting and all of those ten will have female competitors.

Sports like badminton, soccer and volleyball should take note. I would not recommend that anyone try weightlifting or playing soccer in a beehive hairdo, but a hijab should be no obstacle to participation in any sport. Nor should loose fitting clothing, that for many women may be necessary for modesty and decency.

Moira, who is the Chair-Elect of CAAWS (Canadian Association for the Advancement of Women in Sport) would not confirm it with me, but I suspect she played a significant and influential role in the discussions of this issue before the Technical Committee. Don’t doubt that tenacious individuals, in the right place at the right time, can contribute to positive changes such as this one.

OFSAA Eligibility Policy Discriminatory? Or Just a Poor Fit With Organization’s Mandate

by Hilary Findlay.

Direct discrimination on well-known prohibited grounds is typically easily discerned. For example, it is well-known, if not always accepted, that girls may try out for boys’ teams – whether or not there is a girls’ team available to them.  Discrimination on other prohibited grounds has not been as well discussed or clarified, even though the same underlying principles apply. Sport organizations need to be broader  in their thinking around potential discrimination. This article thus applies to all sport organizations – not just those involved in school sports.

The Globe & Mail (April 18, 2011) reported the case of a high school student in Ottawa who was declared ineligible to compete in Ontario high school sports.  According to the Globe, Andrew Towle (pictured), a 19-year old  autistic student, started high school well behind his peers and, although it took him more time than his peers, he has succeeded academically and achieved honour roll status. It is this extra time that he needed that has wreaked havoc on his high school athletic endeavours.

The Ontario Federation of School Athletic Associations (OFSAA) governs school sport eligibility. In this case, there are two key eligibility requirements for participation in OFSSA governed school sport. One is that a student “has not yet reached his/her 19th birthday by January 1st prior to the start of the school year in which the competition is held”. Andrew satisfies the age requirements. The problem is with the second requirement: OFSAA starts counting athletic eligibility once a student starts high school (that is, enters grade 9). A student has five years of eligibility from that date – period. Andrew has taken too long to complete his studies and now is precluded from participating in the school’s athletic program.

It is usual for sport activities to involve some eligibility restrictions. By and large, these restrictions are reasonable and make sense. Weight categories ensure bigger and stronger athletes don’t compete against smaller and less strong athletes. Age often correlates with size, at least at the younger age categories, and so most sports are organized around age categories. Many educational institutions limit the number of years of eligibility of student-athletes. They attach eligibility to years of play, not to years within the academic institution. The usual reason is to allow a turnover of athletes on teams, regardless of how long a student athlete remains at the institution. This is why, for example, universities and colleges have put this rule into place.

The problem with such a rigid approach  is that not all people fit into the normal categories of age, size, weight, strength and skill. Andrew spent his first year at Ottawa Technical Learning Centre taking non-credit courses so as to raise his basic scholastic skills to a grade 9 standard – the point where most students enter the high school system and their five years of  athletic eligibility starts. Andrew’s eligibility started once he entered high school on this remedial basis. Although he  was not part of the athletic program during that time, his eligibility clock nonetheless began ticking.

One can certainly query whether the effect of the current eligibility policy is having a discriminatory effect in Andrew’s situation. His disability is a prohibited ground of discrimination and indirectly, this disability has prevented him from being able to satisfy the eligibility criteria of OFSAA.

But there is another aspect worth mentioning. Policies, such as the eligibility policy of OFSSA, ought to show a ‘good fit’ with the underlying values and philosophy upon which the program is built. In other words, it should be congruent with the values and goals of the organization. The OFSAA website, for example,  refers to sharing a “philosophy of education through school sport“. According to the Globe and Mail article, “The prevalence of autism spectrum disorders among students has grown, and autistic athletes are finding a natural fit and a sense of normalcy in endurance sports”. It is apparent that Andrew’s participation in athletics has benefited him both academically and socially, and in this regard, it could be argued that the mandate and values of OFSAA would support his continued participation.

This story is a useful opportunity to return to some basic ‘touchstones’. What is the purpose of a school sport program? Is it an extension of the academic program for those enrolled at the school? Clearly, it is not intended as the sole focus of a student’s school experience. Nor should a student be attending school solely to participate in school sports in order to gain access to other sport opportunities (although this might well be among the outcomes of a successful high school athletic career). For most organizations like OFSAA, it is clear that sport participation is intended to contribute to, and enhance the educational experience.

Eligibility policies play an important role in defining and shaping a sport program. It is important that they do the job intended and don’t have unfortunate ‘unintended’, potentially discriminatory, consequences for those for whom the programs are designed. In this case, OFSAA is standing firm by its 5-year eligibility rule, saying the rule is designed to ensure other student-athletes have an opportunity to participate.

 

Discussion Paper on Abuse, Harassment and Bullying in Sport

This position paper was prepared by the Canadian Academy of Sport and Exercise Medicine (CASEM) Women’s Issues in Sport Medicine Committee. It proposes that as supporters of safe and healthy performance environments, the Canadian sport medicine community plays an important role in the prevention of maltreatment. As such, it is essential that sport medicine specialists be educated on issues of abuse, harassment and bullying in sport and be equipped with strategies to intervene if or when potential cases arise. This paper reviews current literature on the topic and proposes recommendations for the potential role of sport medicine professionals in the identification, treatment and prevention of abuse, harassment and bullying in sport.

Read more (PDF): CASEM Discussion Paper

The Transgendered Athlete – A New Resource

Conversations about gender identity and transgender athletes are definitely going mainstream these days. Just recently there have been two high profile stories: the first openly transgender athlete competing in the NCAA, and the change to the constitution of the Ladies Professional Golf Association (LPGA) to remove a requirement that members be “female at birth”.  Personally, I welcome these conversations because this is a bold new area of human rights law and thus very intriguing. I have also noted, with relief, that neither of these two cases really raised much fuss. The NCAA player is supported by his teammates, coaches and university, and the members of the LPGA who voted to change the constitution basically indicated it was a “no-brainer”. Some media outlets tried to make this sensational, but there really wasn’t a controversy there.

How times have changed! On our website are several pieces that we have written about the ugly underbelly of homophobia in sport and also about the more complicated (and for many people, even more controversial and objectionable) issue of inclusion of transgender individuals in sport. AthletesCAN, the CCES and CAAWS are to be applauded for their recent groundbreaking work in the Promising Practices project. Initially, I prepared the proposal for funding this research project for another organization but it went unfunded. A few years later, Sport Canada agreed that the research and discussion was important to the question of fair, ethical and inclusive sport in Canada. The resulting literature reviews and discussion paper (authored by Brenda Wagman) are comprehensive and thought-provoking.

A new publication has just been released in the United States and I think it is very relevant for all Canadian sport leaders. The paper, titled On the Team: Equal Opportunity for Transgender Student-Athletes and authored by Pat Griffin and Helen Carroll, flows from a 2009 think tank session (attended by several Canadian sport leaders) that was sponsored by the Women’s Sports Foundation and the National Centre on Lesbian Rights.  The publication provides guidance to high school and collegiate athletic programs about how to ensure transgender student athletes receive fair, respectful and legal access to school sports teams.

Examples of policies and standards for eligibility, participation, and inclusion are also part of this report. In this regard, the publication goes one step beyond the work done previously in Canada.  In early 2008, when I was involved in Promising Practices, I did not feel that our state of knowledge and insight was sufficient enough to frame policy.  But today I think sport leaders are ready.

Here is a PDF copy of On the Team: On The Team – Equal Opportunity for Transgender Student Athletes.

Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(4)

Sport Organizations and the New Occupational Health and Safety Act

On June 15th 2010, an amendment to the Occupational Health and Safety Act was signed into Ontario law which focuses on workplace harassment and violence. The new changes are important for all workplaces, including sport organizations. It is also notable that the vast majority of National Sport Organizations are incorporated under Ontario law, and have offices in Ontario, and are thus affected by this new law. Not complying with the law may result in heavy fines.

What is workplace violence and workplace harassment?

Workplace violence is defined by the Act as the exercise of physical force against a worker in a workplace. Workplace violence includes attempts to exercise physical force that could potentially cause physical injury, as well as statements or behaviour made against a worker, in a workplace, that may be considered a threat to cause physical injury. Additionally, a person who has a personal relationship with a worker – such as a spouse or former spouse, current or former intimate partner, or family member – who physically harms or attempts or threatens physical harm a worker at work, is also considered workplace violence.

Workplace harassment is defined by the Act as conduct or comment made against a worker, in a workplace, that is known (or ought reasonably to be known) to be unwelcome. Harassment is usually considered to be multiple instances of unwelcome behaviour which may occur in a single day or over a prolonged period of time. Unwelcome behaviour includes words and conduct that is offensive, embarrassing, humiliating, demeaning, bullying, intimidating, or discriminating.

Why must there be compliance?

Back in 2004, a Statistics Canada survey found that 17% of all violent incidents in Canada occurred in the workplace. This has resulted in the current amendments to the Act, so as to enhance safety measures in the workplace and additional protections to workers. Ministry of Labour health and safety inspectors will enforce compliance – and as of June 15th 2010, workplaces are expected to be in compliance with the law.

Becoming compliant with the law requires organizations to take three main steps: a risk assessment, policy making, and program implementation. These three steps are outlined further below.

Who must comply?

A workplace is defined by the Act as “any land, premises, location or thing at, upon, in or near which a worker works” and a worker is defined as “a person who performs work or supplies services for monetary compensation”.

Some exclusively volunteer organizations will be exempt from being required to comply with the Act. For example, a local soccer association with a President, Board of Directors, convenors, and coaches, all of whom are volunteers, would not be required to comply with the Act. But a provincial association that employs staff, pays a stipend or honorarium to coaches, and/or pays its volunteers would need to comply with the Act. Note that even if the organization has only two paid staff members – there must still be compliance.

How sports organizations must comply with the Occupational Health and Safety Act

It’s possible, even likely, that your organization is already partly compliant with sections of the Act. Most organizations have policies for emergency situations, hiring and dismissal standards for workers, and a code of conduct for employees. These may be a good part of an over-all policy initiative required under the Act. Complying with the new changes to the Act requires the organization to take three steps:

1) Assessment of the risk for workplace violence

Conducting an assessment of the risks for workplace violence is an essential component for compliance with the Act. An assessment involves determining the potential for workplace violence as a result of the nature of the workplace, circumstances specific to the workplace, the type of work being performed, and the conditions of the work. A risk assessment must include measures to control the identified risks that are likely to expose a worker to physical injury. Employers must also identify workers with a previous history of violence and inform other workers of the likelihood for interaction with these workers, as well as their triggers for violent episodes.

This risk assessment, properly completed, must be communicated to the organization’s committee for health and safety or, if that committee does not exist, to the workers themselves.

2) Creation of workplace violence and workplace harassment policies

Employers must prepare a policy for both workplace violence and workplace harassment. These policies can be combined and incorporated into pre-existing harassment, discrimination, or conduct policies, if appropriate. If six or more workers are employed at a workplace, these policies must be in writing and posted openly at the workplace. Organizations with fewer than six employers must still have these policies – but they do not necessarily have to be written or displayed openly. Nonetheless, they must be communicated to employees and employers need to think about how they can show/confirm such communication.

The workplace violence policy must demonstrate the employer’s commitment to protecting workers from workplace violence. It must also outline the role and responsibilities of persons in the workplace who are involved with supporting the workplace violence program. Notably, the policy must identify possible sources of workplace violence – even when these sources are not part of the workplace. That is, workplace violence might take place in a parking lot, on a sport field or some other locale – even during the drive home from the office depending on the nature of the identified threat (and this, of course, would be rare but, as we all know, not improbable given the nature of the threat). For a sport organization, the possible sources of workplace violence go beyond fellow paid staffers. Other possible sources of workplace violence include volunteers (including coaches and officials), players, parents, and fans.

Similar to the workplace violence policy discussed above, the workplace harassment policy must show the employer’s commitment to protecting workers from workplace harassment. Sources of workplace harassment must be considered, roles of staffers involved with implementing the policy must be explained, and both policies must be dated and signed by the highest level of management present at the workplace.

3) Implementation of workplace violence and workplace harassment programs

Once an assessment of the risks for workplace violence has been conducted, and once policies for workplace violence and workplace harassment have been created, the employer must commit to implementing measures for reporting, investigating, controlling, and reducing instances of workplace violence and workplace harassment.

The workplace violence program must include:

a)        Measures to control the risks of workplace violence (which were identified in the risk assessment stage). These measures would include: safe work procedures, distribution of personal protective equipment, designating safe locations at the workplace for emergency situations, procedures for advising workers about potentially dangerous situations, and limiting the physical locations at the workplace where violence could occur (e.g., opaque windows, dark corners, etc.). Training programs for adhering to the policy would also be part of these measures.

b)        Measures for summoning immediate assistance. These measures may include emergency telephones, emergency email addresses, or equipping workers with personal alarms, pagers or cellphones

c)        Measures for reporting incidents. These measures would help workers determine how to report workplace violence, to whom (listed on the policy), if any forms are required, or if any outside group (e.g., police, Ministry of Labour, etc.) requires notification of the incident.

d)        Procedures for how the employer will investigate and deal with incidents. These procedures will guide employer actions for how and when investigations will be conducted, who and what will be included in the investigation, the roles and responsibilities of the people involved, how the incident will be recorded, and how any decisions will be resolved and enforced.

The workplace harassment program would include the final two points from the list above – the measures for reporting incidents and the procedures for investigating and dealing with incidents. Both the workplace violence program and workplace harassment program may be combined into a single program. The programs should also include a mechanism for informing workers of the program (e.g., a training program) and also documentation of any meetings about workplace violence or workplace harassment training or implementation. The policies and programs must also be reviewed or updated annually or bi-annually.

What else from the Act is important?

The updates to the Act also highlight the possibility of domestic violence spilling into the workplace and how employers can manage this potential risk. Further, the Act guides employers about when and why workers can refuse to come to work if they are concerned about workplace violence or workplace harassment and the appointment of a health and safety committee or representative.

Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(3)

Girls Playing on Boys’ Teams

Girls wanting to play on boys’ teams…. This human rights issue has cropped up again, several times in fact, in the past short while. This timely column is about what the law actually says about girls trying out for boys’ teams and addresses some of the issues that are often raised around the issue – and which deserve serious thought.

In the spring of this year, a high school soccer player named Courtney Greer was prohibited from playing on her school’s boys’ soccer team. The fundamental issue revolved around a rule of the Ontario Federation of School Athletic Associations (OFSAA), which stated that girls could not play on boys’ teams unless there was no girls’ team. Greer filed a complaint with the Ontario Human Rights Commission. In May 2010, OFSSA settled the complaint and changed its rule to allow girls to try out for boys’ teams, regardless of whether or not there existed a girls’ team.

A series of cases over a 25-year span, from Blainey v. Ontario Hockey Association to Casselman v. Ontario Soccer Association to Pasternak v. Manitoba High School Athletic Association, makes the law clear: girls may try out for boys’ teams regardless of whether or not there is a girls’ team available, and regardless of the level of skill of the girls’ team. Of course, there are exceptions. For example, issues of safety may dictate that a girl does not play on a particular boys team, or that she play in a particular position on the team (such as punter in football). That said, the law is clear that any restriction must be as minimally intrusive as possible and must be implemented for a legitimate reason.

Discrimination law (that is, human rights law) is a bit schizophrenic. Most often, it is the individual who brings the complaint because what is at issue is a matter of individual rights. In these cases, the person typically bringing the complaint is a girl with superior skill wishing to participate at a level commensurate with her level of skill – which means, in most cases, participating with the boys. On the other hand, there is a general view within the sport community that we should develop opportunities for all girls, which is a matter of group rights. What we end up with is a battle between individual rights and group rights – yet both sets of rights are valid and both deserve consideration.

In these situations, hiving off the top females from the girls’ team (to allow these girls to play at a level consistent with their skills) is often believed to lead to the depletion of female teams and impede the development of opportunities for girls. This was the argument put forward against inclusion of girls in boys programs in both the Blainey and Pasternak cases. However, that fear has not played out. Even though the Blainey case allowed girls to play boys hockey, there was no mass movement of skillful girls over to boys’ teams (nor has there been since Pasternak in 2005). It may well be that it is only a select few girls who want the experience of competing in the male environment.  However, while there has not been a mass movement of girls to try out for boys’ teams, there is no evidence one way or the other regarding its impact on the development and operation of girls’ sport.  The issue clearly needs further study and consideration.

Using another line of inquiry, it might be that the real problem lies elsewhere. Everywhere one looks, there is a dearth of women in leadership roles in the sport system. As participants, females are abundant. But there are significantly fewer female coaches than male coaches in Canadian sport, particularly at the elite level. This is not a knock against male coaches coaching female athletes but rather a call for more females to the coaching ranks.

There are also other discrepancies. Male adjudicators vastly outnumber female adjudicators within our dispute resolution system (within the Sport Dispute Resolution Centre of Canada, only six of the 31 arbitrators are female and only four of the 14 mediators are female). Female participation on boards of directors, committees and as officials also lags behind. This is not meant to diminish the work of men but to encourage more role models for girls.

Opportunities for participation have certainly increased through explicit policies, such as those of the IOC in adding sports to the Olympic program. Today both male and female disciplines must be added simultaneously. However, we are reminded of the female ski jumpers’ case (Sagen v. Vancouver Organizing Committee for the Olympic Games) in which the court found that the source of the discrimination was rooted in the historical practice of limiting women’s overall participation in the Olympic Games. In 1949, the IOC introduced selection criteria for determining which sports would be added to the Games program.  At the same time, those sports already in the program were ‘grandfathered’. Thus, men’s ski jumping has never been subjected to the analysis of whether it should be in the Games – and if it were, just like women’s ski jumping, it would not pass the test.

Historical discrimination is a very pervasive issue. It manifests as a constant exercise of ‘catch-up’ for female sport. The case of Morrison v. City of Coquitlam is an example of historic and systemic discrimination. In this case, municipal subsidies and property tax breaks disproportionately favoured facilities accommodating mainly male sports over facilities mainly female sports. Another example is Beacon Hill Little League Major Girls Softball Team v. Little League Canada, where traveling budgets for the boys’ and girls’ championships teams were disproportionately and discriminatorily allocated.

In conclusion, it seems we need to address both areas of concern – individual participation, as well as the management and operational aspects of sport. The latter is more about ‘group rights’, and that is where, in my opinion, we need to see more effort and activism.

Originally published: Coaches Plan (2010) Vol. 17(2).