The origin and practice of accommodation
by Gérard Bouchard and Charles Taylor
It would first be useful to pinpoint the source of this general idea of accommodation or harmonization. In any society in which two or more cultures coexist there arises inevitably the question of the management of diversity or difference. This question has always arisen. Until very recently, it was usually resolved in an authoritarian manner: a more powerful culture sought either to dominate other cultures through marginalization or to eliminate them by means of assimilation. Despite everything, relaxation or reconciliation practices have always existed, even in empires. For several decades, above all in the West, attitudes have changed and the democratic nations, as we noted earlier, have become much more respectful of diversity. The method of managing our life together which takes shape is based on the general ideal of intercultural harmonization.
First, this new orientation essentially promotes pluralism, i.e. respect for minority traits and customs, which allows each citizen to develop freely according to his choices and characteristics. Second, it is also aimed at the complete integration of all citizens (at least, those who so desire) into collective life. In the spirit of this international change that is introducing the world over the respect for diversity, this is a twofold responsibility that extends to all normative bodies or centres in a society, i.e. government, health care establishments, schools, the family, businesses, the courts, churches, volunteer associations, and so on.
a) Concerted adjustment and reasonable accommodation
This new vision or sensitivity underlies the principle of concerted adjustment. It has been observed that the vision has gradually made inroads among Western intellectual and political elites. According to different procedures and at different paces, in fits and starts, it is now penetrating national cultures. In Québec, for example, our research reveals that harmonization measures are already part of everyday life in a number of public institutions such as health care establishments, schools and universities.
At the same time as this change in the citizen sphere and perhaps in its wake, a new tradition has emerged in the field of law. It has taken concrete shape over the past 20 years in the legal mechanism called reasonable accommodation. Unlike concerted adjustment, this mechanism creates a formal, legal obligation. However, the logic underpinning it is the same one found in concerted adjustment. It is summarized below.
Harmonization practices are dictated by the basic principle of equality and equity. Indeed, the duty of accommodation is intended to ensure the fairness of the rules in keeping with section 10 of the Québec charter and section 15 of the Canadian charter. What immediately follows is an ethic of reconciliation that encompasses all social actors, in particular public and private managers. The intended objective is to counter certain forms of intentional or unintentional discrimination that the courts have traditionally described as indirect, i.e. those, which, without directly or explicitly excluding an individual or a group nonetheless lead to discrimination stemming from a prejudicial effect. This type of discrimination arises from the rigid application of a norm under certain circumstances pertaining to employment, public and private services, housing, and so on. It should be noted, however, that pursuant to recent court decisions, some forms of direct discrimination in their effect can now lead to solutions that also fall under reasonable accommodation.
For illustration purposes, let us consider the rule prohibiting students from bringing syringes into the classroom. The life of a diabetic child might thus be threatened, which explains the relevance of the relaxation of the rule. Similar concerns govern the adjustment of certain rules in the workplace, e.g. the relaxation of mandatory dress codes to accommodate pregnant workers. The same principle applies to the allocation of parking spaces and the installation of toilets or access ramps for the disabled.
In the absence of an adjustment of the rules, these individuals could be put at a disadvantage or excluded, thus compromising their right to equality. In these situations, the duty of accommodation created by law does not require the cancellation of a rule or the withdrawal of a general prohibition but only the mitigation of their effect on such individuals by granting an exception to the rule, an exemption from the prohibition or a special adaptation. In addition to the prohibition of discrimination, the judges are asking managers and employers to be proactive by seeking concrete measures likely to foster equality in society.