Reasonable accommodation

In Quebec, under the Canadian Charter of Rights and Freedoms and the provincial charter of human rights, politicians engaged in "values" clarifications on accommodation from at least 2007. In that time, various ideologies attempted to impose onto Quebecers definitions of values, without consensus or even legislative success.[2] The question on what was and will be the national identity has been contested, such as the court decision on the wearing of the Sikh kirpan in Multani v. Commission scolaire Marguerite‑Bourgeoys.

The municipal council of the town of Hérouxville passed a "code of conduct" for residents. It provided details of expectations of behaviour, and defined practices of other countries that were not acceptable in the town, such as stoning women or burning them alive, and female genital mutilation. The code of conduct also explained common practices in Canadian culture. It said that carrying a weapon to school (a reference to the Sikh ceremonial kirpan), covering one's face (some particular forms of the Muslim veil), and making accommodation for prayer in public schools would not be permitted. It attests that "Our people eat to nourish the body, not the soul," in reference to Jewish and Muslim dietary laws, and that health-care professionals "do not have to ask permission to perform blood transfusions."

This code of conduct was developed as the town and province absorbed more immigrants from other cultures. Other cultural questions arose. In 2007 a YMCA set up clouded windows to shield ultra-Orthodox Jews who had complained that youngsters could see girls and women in gym attire. There have been questions about whether voters are allowed to fill out and submit ballots while clothed in a niqab or burka, which can hide identity. A Muslim spokesman said that women are always required to show identity for public purposes, so it was a question raised unnecessarily.[3]

While most residents in Quebec have identified as Catholic on surveys, the province has become increasingly secular, with declining rates of church attendance. The provincial government has worked to reach an accommodation with the Roman Catholic Church on guidelines for conversion or disposal of underused churches. The church has allowed local parishes to work with municipalities to develop the buildings as community centres, for example, rather than for private condominium construction.

In 2007, Benjamin Rubin, a forward with the Gatineau Olympiques ice hockey team, refused to play several key matches because they fell on a Jewish holiday. Some claimed the Jews would end up forcing the Quebec Major Junior Hockey League to reschedule all their matches on Fridays and Saturdays. Rubin and the Olympiques came to an agreement, and "he will only miss a handful of games." He has since left the team.[4][5]

In 2007 Elections Canada ruled that Muslim women wearing the niqab (veil) or burka would be allowed to vote in all upcoming national elections, by-elections and referendums without showing their faces to an Elections Canada official.[6] The same policy applies to all Canadians under federal Bill C-31, in that photo identification is not strictly required if two other pieces of acceptable official identification are provided, or another voter vouches for them. The proclamation created social animosity towards Muslims in Quebec.[6] Premier Jean Charest of Quebec described this as a bad decision. He noted that Quebec's National Assembly had voted to forbid Muslim women from voting if they would not reveal their faces as a confirmation of identity.[6]

The national Conservative government challenged Elections Canada to review this decision. The federal Liberals and the Bloc Québécois also requested such a reversal, to demand that all voters be required to show their faces in order to vote, even those whose faces are normally covered for religious reasons. They joined other federal and provincial politicians from Quebec who attacked the decision.[7]

Sarah Elgazzar, an advocate for the Canadian Council on American–Islamic Relations in Montreal, declared that it is improbable that very many Muslim women will have hidden faces when voting. Elgazzar insisted that women using niqabs usually take them off to distinguish themselves and do not sport them for photo identification. This opinion was echoed by Salam Elmenyawi of the Muslim Council of Montreal.[8]

There was extensive coverage of related issues in Quebec's news media in 2006 and 2007. Some analysts attributed this more to competition among media than a measure of citizen concern. The premier of Quebec declared several non-negotiable values, such as "the equality of women and men; the primacy of French; the separation between the state and religion".

The conservative political party Action démocratique du Québec (ADQ) appeared to gain support from these debates. It formed the official opposition in the provincial legislature for one term from 2007 to 2008, until the increasing prominence of the global economic crisis relegated reasonable accommodation to an issue of less importance.[9]

A 2006 examination from Statistics Canada demonstrated that Quebec had the highest newcomer unemployment rate in Canada.[10] The newest immigrants endured an unemployment ratio of 17.8 per cent in 2006, or almost three times the 6.3 per cent ratio of native-born help. In contrast, joblessness among current newcomers in Ontario was 11 per cent contrasted with 4.4 per cent among the Canadian born. In British Columbia, the numbers were 9.5 per cent and 3.7 per cent, respectively.[10]

The study's coauthor, Danielle Zietsma, was reported to have cautioned that she and her colleagues would need some time to conduct the analyses necessary to explain the basis of these findings. The Montreal Gazette columnist Jay Bryan suggested that Quebec was exceptional in the degree to which it imposed hurdles on new immigrants seeking employment in the province, including "the devaluation of allegedly inadequate foreign credentials, language tests that have little to do with professional performance, and 'Canadian experience' requirements that serve as an all-purpose excuse to lock out job applicants who don't already have a job."[10] However, the column reported that the study had found similar numbers of surveyed immigrants had indicated that the demand for Canadian experience (26 per cent) or foreign credentialing and work experience recognition problems (21 per cent) as principal barriers to employment.[10]

Former leader of the Parti Québécois André Boisclair noted, "We're not talking about reasonable accommodation [if] it has nothing to do with public services", Boisclair said. At the same time, Boisclair blamed Premier Jean Charest for pandering to Quebecers who balk at adjustments made for immigrants in civil society. Charest declined to defend them when girls wearing hijab were prohibited from soccer and tae kwon do, and when prejudiced remarks were offered about Jews.[11]

Mario Dumont, leader of the Action démocratique du Québec (ADQ) said in an interview in La Presse that Quebec needs more immigration for economic and demographic reasons, but that he believes that Quebec had met its limits of immigrant acculturation, and that any further increase in rates of immigration would create ghettos. (At present, the province accepts a smaller percentage of newcomers than elsewhere in Canada.) He criticized Charest for a plan to raise such levels when the Liberal government has cut funds for integration of newcomers into French culture. "We're a linguistic minority...and immigrants need francization", Dumont said. "It's quite a challenge."[12]

Then Parti Québécois leader Pauline Marois said that Quebec should assume all control over its immigration, not the 60 per cent that it has now under a bilateral agreement with the government of Canada. She also said the province should make the message clear to immigrants that Quebec is a francophone "state", not officially bilingual as are the federal government and Quebec's neighbouring province New Brunswick.

Marois said that Quebec is in need of more immigrants, to offset a low birth rate for future labour needs. She further believes that Quebec is a francophone state in which the rights of the anglophone minority are respected, and where all the inhabitants live in French.[13] Charest criticized his political adversaries in the provincial legislature, and blamed them for encouraging "intolerance" in the continuing controversy. He published an open letter in regional dailies, saying he is worried the province's image of openness will diminish outside Quebec.

Dumont's statements about immigration, he said, led to the passing of a code of conduct by the town of Hérouxville that notified Muslims that face veils or stoning women would not be accepted there.[14]

Premier Jean Charest, citing several instances of "unreasonable" accommodation, advised the Lieutenant Governor of Quebec to appoint a two-man commission in February 2007, to investigate the issue of reasonable accommodation, and report back by 31 March 2008. The formal title for the commission[15] is the Consultation Commission on Accommodation Practices Related to Cultural Differences,[16] and it is sometimes called the Bouchard–Taylor Commission. Its commissioners are professors Charles Taylor, a well-known federalist and philosopher, and Gérard Bouchard, a historian and sociologist. Bouchard said in an interview that sovereignty was the solution to calm Franco-Quebecers' cultural insecurity. Co-chair Taylor stated, however, that Quebecers need to demonstrate the "openness and generosity of spirit" that majorities should have towards minorities.[9]

The commission conducted hearings in various Quebec regions. The committee listened to individuals, organizations, and so-called experts on Quebec identity, religion, and integration of cultural communities (minority groups). Before formal proceedings began, Bouchard and Taylor said they heard in focus groups across the province that there was insecurity among Quebec's traditional ethnic French population. They believed that hearings would help with educating the public; for instance, they thought the perception of Muslim influence was higher among some groups than is justified by data.[17] Taylor underlined that Quebecers need to show an "openness and generosity of spirit" for 'cultural communities. As well, the report recommended that accommodation be made in public schools to allow students who want to wear religious attire in class, such as the hijab, kippah or turban, to do so.[18]

The Bouchard–Taylor report recommended that judges, Crown prosecutors, prison guards and police officers refrain from wearing any religious attire or symbols. "We believe that a majority of Quebecers accept that a uniform prohibition applying to all government employees regardless of the nature of their position is excessive, but want those employees who occupy positions that embody at the highest level the necessary neutrality of the state ... to impose on themselves a form of circumspection concerning the expression of their religious convictions", Bouchard and Taylor wrote.[19]

The commission also recommended that the crucifix in the National Assembly, placed above the Speaker's chair by Premier Maurice Duplessis, be removed to another part of the building. This is a recommendation that successive governments have rejected.[20]

In 2017, In the aftermath of the Charter of Quebecois Values debate, Taylor stated that he no longer supports that opinion, and said it was misinterpreted by many politicians. The Bouchard–Taylor report deliberately did not include teachers, civil servants and health-care professionals from those that should be forbidden to wear religious symbols.[21]

The Americans With Disabilities Act, known as ADA, was signed into law on 26 July 1990. It carried forward material from Section 504 of the Rehabilitation Act of 1973. 'A reasonable accommodation' is defined by the US Department of Justice as "any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."

In September 2012, Home Depot company agreed to pay $100,000 and furnish other relief to settle a disability discrimination lawsuit filed by the US Equal Employment Opportunity Commission, for the alleged failure to provide a reasonable accommodation for a cashier with cancer at its Towson, Maryland, store, and then for purportedly firing her because of her condition.[22]

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity".[23] State and local governments must provide reasonable accommodations to ensure such access, unless a fundamental alteration would result.

Title III of the ADA requires private businesses open to the public and commercial facilities to provide reasonable accommodations to people with disabilities to ensure that they have equal access to goods and services.

Under Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, codified in the United States Code at 42 USC §§ 3601–3619, and commonly known as the Fair Housing Act, virtually all housing providers must make reasonable accommodations in their rules, policies, practices, or services under certain circumstances. A reasonable accommodation must be granted when such an accommodation is necessary to afford a prospective or existing tenant with a disability an opportunity to use and enjoy a dwelling (including but not limited to apartments, single family homes, and other types of private and public housing) to the same extent as a person who does not have that disability. The Fair Housing Act covers "dwellings", and in many situations that term encompasses such non-traditional housing as homeless shelters and college dormitories. It bears noting that in regard to larger dwellings such as apartment buildings, the right to a reasonable accommodation under the Fair Housing Act requires that housing providers grant a requested reasonable accommodation that is necessary to enable a disabled tenant to enjoy an indoor or outdoor common area to the same extent as a non-disabled tenant enjoys such areas.

In regard to reasonable accommodations, there is no requirement that a housing provider initiate the reasonable accommodation process; the Fair Housing Act contemplates that a tenant will approach his or her landlord with a request for a change in the landlord's policies that will reasonably accommodate the tenant's disability. For example, a prospective or actual tenant whose disability requires him to use crutches may request a reasonable accommodation in the form of an assigned parking space close to the entrance of his or her apartment building. If the disability is of a kind covered by the Fair Housing Act, and there is a genuine relationship between the requested accommodation and the disability, and granting the reasonable accommodation would not fundamentally alter the nature of the landlord's operations or impose an undue financial or administrative burden on the landlord, then the landlord must grant the requested reasonable accommodation or else find himself in violation of the Fair Housing Act and liable for substantial civil money penalties as well as payment to the disabled person for the injury suffered by him or her.

The Fair Housing Act is enforced by the US Department of Housing and Urban Development (HUD), whose regulations governing reasonable accommodations are found at 24 CFR § 100.204. Sometimes it is easy to tell when (for example) a tenant has a disability and the tenant's reasonable accommodation request must be granted; other times it is not quite so apparent that a tenant suffers from a recognized disability. But a housing provider has an obligation to engage in an interactive process in order to honestly try to figure out whether the requested accommodation is reasonable and must be granted.

The Department of Housing and Urban Development and the US Department of Justice have issued a joint statement to provide guidance on the concept of reasonable accommodation.[24] Title II of the Americans with Disabilities Act of 1990, as amended (including the amendments made by the Americans with Disabilities Amendments Act of 2008), overlaps with the Fair Housing Act in its coverage of public housing. As noted on HUD's website: "Public housing was established to provide decent and safe rental housing for eligible low-income families, the elderly, and persons with disabilities."[25] Over a million US households live in public housing.