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Notwithstanding clause or not, Quebec must accommodate its employees


Will the new Coalition Avenir Quebec government go ahead with its election promise to prohibit certain civil servants from wearing religious symbols at work?

For now, Premier Francois Legault has decided to wait until the spring to table a bill that will contain measures calling for “people in authority positions” who work for the government to be fired if they wear or display religious symbols at work, which would be a first in Quebec and Canada. What can affected government workers do?

Let’s consider the concept of “state neutrality” before exploring the options employees would have at their disposal to challenge the law. The Legault government’s plan would change the usual meaning of state neutrality. In Canada, this concept calls for an institutional separation between religion and the state, which suggests government policies can’t favour or penalize any specific religion.

Unlike some European countries, including France, the notion of state neutrality in Canada means government employees are not expected to meet some form of “standardization.” It also doesn’t call for the prohibition of all distinctive religious symbols that would go against the notion of the secular employee sought by Quebec’s elected officials.

In 2006, the Supreme Court of Canada ruled against a Quebec school board that wanted to prohibit a 12-year-old Sikh boy from wearing a kirpan – a ceremonial dagger – in the classroom.

So it’s not surprising the Quebec government is considering invoking the notwithstanding clause of the Canadian Charter of Rights and Freedoms to bring in its new law. If the notwithstanding clause is invoked, freedom of religion and the right to equality could not be used to challenge the constitutional validity of banning the wearing of religious symbols at work.

But does that mean the Quebec government will have no obligation whatsoever to accommodate civil servants who would be targeted by the ban on displaying religious symbols?

There’s legal precedent to suggest an unwillingness by the government to make accommodations would not be a fatal blow to the proposed Quebec law.

In its 2009 judgment involving the Hutterian Brethren of Wilson Colony, the Supreme Court ruled the approach of reasonable accommodation is incompatible with the enactment of a law that is of widespread significance.

Members of the Hutterite community claimed an Alberta law that made it mandatory to have one’s photo taken to obtain a driver’s licence violated their religious beliefs. They asked for accommodation from the government. But the Supreme Court, under then-Chief Justice Beverley McLachlin, refused to make it compulsory for the legislative branch to offer reasonable accommodation.

Modifying the scope of a law based on the analysis of undue hardship in each particular case would be an impossible task, in addition to undermining the principle of legal predictability.

But how would the law of reasonable accommodation apply to civil servants who are employees of the Quebec government? Certainly, the government may flex its legislative muscle to pass a law prohibiting the wearing of religious symbols by its employees. Nevertheless, in the end, firing civil servants who don’t adhere to the law puts the government in a different position – that of an employer.

Just like any employer in Quebec, the government cannot practise discrimination in the workplace based on religion, as stipulated in Articles 10 and 16 of the Quebec Charter of Rights and Freedoms.

Before dismissing an employee, the employer will have to respect its duty to reasonably accommodate by relaxing its standards unless they cause undue hardship in its organization.

Employment standards passed by the government do not automatically discharge the employer from the obligation to provide reasonable accommodation.

For example, the Quebec Superior Court ruled an employer had to apply reasonable accommodation in the case of three Sikh truckers whose religious beliefs did not allow them to wear a safety helmet on top of their turbans.

The court handed down that ruling even though the mandatory wearing of helmets reflected legal obligations under the Canada Labour Code and the Canada Occupational Health and Safety Regulations.

All in all, the obligation of the state as an employer to provide reasonable accommodation could serve as a bulwark against the Legault government’s plan to invoke the notwithstanding clause -and it could also save the jobs of civil servants who could reasonably expect some form of accommodation.

— By Sebastien Parent, Charge de cours en droit du travail a la Faculte de droit de l’Universite de Montreal et a Polytechnique Montreal, chercheur doctoral au CRIMT et avocat membre du Barreau du Quebec, Universite de Montreal

This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.

Copyright (c) 2017 The Canadian Press