The Québec Charter of Values: Defining employers' religious accomodation duties under the Québec Charter of Human Rights and Freedoms
The Québec Charter of Values triggered an ongoing and vigorous national debate when it was unveiled by the Minister responsible for Democratic Institutions and Active Citizenship, Mr. Bernard Drainville, last September. The Minister finally presented the Bill to the National Assembly of Québec. The Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests was presented last November and contains 51 sections that would modify various laws, including most importantly the Québec Charter of Human Rights and Freedoms by adding fundamental values of the Québec nation to the already existing rights and liberties and by adding a definition of “reasonable accommodations”.
The duties and obligations of public bodies and childcare services sector employees
The Bill creates duties of neutrality and reserve in religious matters for personnel members of public bodies and of the educational childcare services sector, i.e. childcare centres, home childcare coordinating offices or subsidized day care centres. In order to fulfill their duties, those employees would be required to restrict themselves from wearing religious symbols such as headgear, jewellery or adornments that overtly indicate a religious affiliation. They would also be required to uncover their faces while exercising their functions. Such duties and obligations would be deemed to constitute an integral part of the employment conditions of those employees. Those in non-compliance may be subjected to disciplinary measures assuming an initial attempt is made with the non-complying employee to foster compliance. Interestingly, section 10 of the Bill provides that public bodies may require that any person or partnership with whom it has entered into a service contract or subsidy agreement fulfill the said duties and obligations when circumstances justify it.
Is there a need to clarify the application of reasonable accommodation in the workplace?
The Bill also specifies how public bodies or entities in the childcare services sector shall handle accommodation requests on religious grounds, with specific provisions in regards to accommodation involving absence from work.
When Mr. Drainville first introduced the concept of the Québec Charter of Values, he suggested that the business community feels ill equipped and anxious when it comes to answering religious accommodation requests. He claims that the legal framework proposed by the Charter would stimulate the integration of new Québecers in the private sector job market by providing a clear way to deal with such requests. This assumption raises a question: is there really such unease amongst employers on the question of religious accommodation?
It does not seem so obvious. The Conseil du patronat du Québec released a statement after consultation with 100 of its members stating that 98% of them say they are not facing significant problems concerning religious accommodation requests. The statement also reveals that 70% of consulted members consider existing legislation and jurisprudence sufficient to guide them on accommodation requests. In an interview with the CBC, the president of the Canadian Federation of Independent Business said that to her knowledge, the management of religious accommodations did not represent a serious problem experienced by its members.
On that matter, it is interesting to note that the body overseeing the Québec Charter of Human Rights and Freedoms, the Commission des droits de la personnes et des droits de la jeunesse, provides tools for employers in this regard, such as a virtual guide on processing reasonable accommodations and a personalized advisory service to managers and human resources managers. The Commission commented on the Charter of Values, and said, amongst other things, that it was questioning the necessity of defining the concept of reasonable accommodation when the Courts regularly deal with and apply the concept with the help of recognized jurisprudential criteria.
A Parliamentary Commission began public hearings on the Charter of Values on January 14th. More than 200 memoranda from various groups were submitted. The Québec Bar memorandum states that it will be difficult to conciliate the general prohibitions of religious symbols established by the Bill with the fundamental freedoms enshrined in the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms. The Bar is also of the opinion that accommodation requests are to be evaluated and applied on a case by case basis.
For more information on the Bill, please click here.
For more information on the position of the Commission des droits de la personne et des droits de la jeunesse, please click here.
For more information on the Québec Bar memorandum, please click here (french only).