The origin and practice of accommodation

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.

This obligation to accommodate is obviously not unlimited and is governed by functional criteria usually indicated by the term “undue hardship,” i.e. the burden stemming from a request for accommodation in light of its cost or the bureaucratic red tape that it engenders. Moreover, the definition of undue hardship also implies a limit in principle to the possibility of injuring other people’s rights.

In keeping with the law, the harmonization measures requested or granted for religious reasons follow the same logic. For example, let us take the case of Jews or Muslims who have obtained leave to celebrate their religious holidays, as do Catholics, who, almost without exception, have always been allowed to absent themselves from work on Sunday, at Christmas and at Easter. Once again, it is the rule of equality or fairness that prevails: what is legitimate for one religion is legitimate for the others. On account, in this instance, of freedom of religion and, more specifically, the right of any citizen to practice his religion, a secular State funds chapels in detention centres. Race, nationality (ethnic or national origin) and sexual orientation are other reasons for direct or indirect discrimination covered by the duty of accommodation. It should also be noted that, in law, this type of relaxation stems from the Québec charter and that the Québec courts have explicitly recognized this provision.

B) Why do we need harmonization measures?

Each of these cases illustrates the logic at the heart of harmonization measures. From a sociological standpoint, it has been observed that a number of apparently neutral, universal norms in fact reproduce visions of the world, values, and implicit norms that are those of the majority culture or population, e.g. restaurant, airline or cafeteria menus, which used not to take account of vegetarians or individuals with allergies. Even if such provisions did not exclude a priori any individual or group, they can nonetheless lead to discrimination towards individuals with specific traits such as a temporary or permanent physical disability, or because of their age or religious beliefs. It follows that absolute rigour in the administration of legislation and regulations is not always synonymous with fairness.

It is thus apparent that uniformity or homogeneity is not a necessary consequence of the right to equality and freedom of religion. According to jurists, a given right can sometimes demand different treatments that must not be placed in the same category as privileges, since they remedy a shortcoming in the administration of a statute or a regulation. To summarize, in the words of the experts, a treatment can be differential without being preferential. We are thus dealing with two conceptions, not of the right to equality but of the method of its application, i.e. (a) a formal, doctrinal, very rigid conception, or (b) a nuanced, flexible conception that is more inclusive because it focuses more directly on the diversity of situations and individuals.

C) Misunderstandings

The foregoing comments enable us to clear up three misunderstandings. First, and contrary to widespread popular belief, it seems to be well established that complainants are less often immigrants than members of ethnic minorities who have been settled for some time and, occasionally, a long time, in Québec. Second, in a similar vein, it is useful to point out that harmonization requests do not stem solely from religions introduced into Québec by recent immigrants. Protestants and Catholics alike benefit from them by virtue of their beliefs (a day off on Sunday, students exempted from an introductory course on sexuality, nurses exempted from participating in an abortion, a civil registrar who refuses on grounds of conscience to officiate at homosexual marriages).

Some people believe that allowing accommodation or adjustments by invoking the Charter of Human Rights and Freedoms is tantamount to exempting individuals from certain norms applicable to everyone, in other words, to granting them privileges. Contrary to this perception, it must be pointed out that taking into account a difference does not necessarily lead to a preference. Harmonization practices target instead broader compliance with provisions in the Charter such that the right to equality, in particular, is applied more integrally and inclusively.

Conclusion

To summarize, like many other Western nations, Québec, too, has followed the trend to pluralism, which leads to harmonization. Moreover, like a number of other nations, it is experiencing a controversy that affords it an opportunity to take stock of the situation. It might be said that four solutions are available: stay the course, change course, make sweeping changes, or back track.

Questions

The meaning of the “crisis”

a) How do you interpret recent events and the tensions or reactions that they have aroused? What are their causes, scope and impact?

b) Do you perceive an acute crisis that calls for drastic changes or a problem that could be remedied fairly easily by the appropriate adjustments?

Are you for or against reasonable accommodation and concerted adjustment?

c) Overall, what is your assessment of harmonization practices: are they essential, useful, ambivalent, ill-advised or harmful?

d) Should such practices be maintained in their current form, broadened, eliminated or only modified?

e) In the latter instance, in what way?

f)  What, in your view, are the main advantage and the main drawback to such practices?

g) Could you give examples of harmonization measures that strike you as (1) entirely acceptable and (2) downright exaggerated, and justify your choice?

h) Overall, do you believe that harmonization practices (1) are a necessary mechanism in a diversified, democratic society and a rudimentary gesture of openness to the other; or (2) that they represent the abdication by Quebecers of French-Canadian origin and the repudiation of their culture?

Guidelines

i)  Do you fear that harmonization practices will go wrong and get out of control?

j)  If so, how do you justify this fear?

k) If need be, what guidelines and criteria could be established to set an acceptable limit on harmonization practices?

l)  Do you believe that, as part of the solution, the Québec charter and, perhaps, the Canadian charter, should be amended? If so, in what way?

Accommodation for religious reasons

m) How, specifically, would you handle harmonization requests based on religious reasons?

n) Do you think that these requests should be examined differently depending on whether Christianity or other religions are in question? In other words, must all religions be deemed to have equal value in the Québec context?

o) Does this type of request seem as admissible as requests formulated for health reasons, for example?

p) Do you agree with the position adopted by the Supreme Court of Canada, which, in the handling of these cases, relies on a subjective or personal conception of religion instead of a more doctrinal or “objective” conception?

q) Do you believe that harmonization practices risk compromising the principle of gender equality, especially in certain religious groups?

r)  If so, what remedies might be adopted?

s) Are you afraid that harmonization practices may supplant the secularization that has been achieved in Québec society in recent decades?

The media

t)  Over the past year, what have been your main sources of information on harmonization practices?

u) Do you feel that you have been correctly, adequately informed?

v) Do you have any recommendations to make in this respect?

w) Which media (radio, television, newspapers) and which commentators (editorialists, columnists, experts, open-line radio show hosts) do you trust the most?

x) How might the media contribute further to better management of ethnocultural differences?