October 16, 2013

TRY IT IN THE WORKPLACE – GOOD LUCK!

Ban the kippah, the turban, and the hijab, and in 5 years, we will assimilate you.  That is exactly what PQ leader, Pauline Marois thinks as she seeks to introduce the most controversial, and discriminatory legislation:  The Quebec Charter of Rights (“Charter”).

 In Québec, the government has made headlines around the world by introducing their Charter, a policy that is purportedly intended to affirm the separation of church and state, but appears to be more of an attack on the “ethnic vote” that cost the Parti Quebecois the last referendum, at least according to former PQ leader, Jacques Parizeau’s post-referendum rant.

Among other things, the controversial Charter would ban the wearing of religious symbols by those who work in the public sector. While small inconspicuous religious symbols would be allowed, any other or more “ostentatious” religious garb or symbol would be banned. Presumably, the PQ would not see this as necessary if there were no minorities and every Quebecer was “pure laine”.

Thankfully, the PQ initiative has met with widespread condemnation, with the Québec government being accused of being racist and xenophobic.

Why would this kind of Charter be acceptable in Quebec society, when it is most definitely not acceptable in any workplace across Canada?

Hopefully, no employer in their right mind would consider implementing such an offensive policy. It is contrary to everything for which our multicultural society stands . We expect employers to promote workplaces free of discrimination and harassment, not eradicate differences and champion conformity.

 If an employer ever attempted to impose such a preposterous rule, federal and provincial human rights legislation would come into play. This legislation prohibits any discrimination on the basis of, amongst other things, religion, whether the discrimination is direct or indirect. An example of direct discrimination would be a job posting that declares “no Jews need apply”, which we all (Mme. Marois perhaps excepted) understand is unacceptable. However, a requirement that all employees be available to work on Saturdays would have the same effect, making it impossible for religious Jews to accept employment. Both forms of discrimination are unlawful unless the requirement can be shown to be a bona fide occupational requirement.

Some have defended the Charter of Values by pointing out that it treats all groups equally, and is therefore not discriminatory. However, the law is clear: treating everyone in the same way is not necessarily the same as treating them all equally. Returning to the example above, the workplace policy that requires employees to work on Saturdays would treat all employees equally. However, only those who observe a Sabbath on Saturdays would be adversely affected. The requirement would therefore be discriminatory.

Furthermore, while the proposed Charter bans all conspicuous religious symbols, it will have a different impact upon people of different religions. For example, while a crucifix pendant is easily concealed under a shirt, a turban or hijab cannot be hidden.

The controversial Charter would have an adverse impact upon members of certain groups as a direct result of their decision to express their religious beliefs. It creates a barrier to employment for those who choose to wear religious apparel or symbols, thereby violating  basic principles of human rights.  If Canadian employers cannot have policies  eradicating any sign of religious identity in the workplace, unless there is a bona fide occupational requirement to do so, why should the Quebec government?  Absent that, it is prima facie discrimination.

Some aspects of the Charter will come into effect in five years.  While the government has arguably provided more than “reasonable notice” of the change, that does not mean that the Charter is any less offensive or unlawful. Any employer that attempted to impose a similar policy would find themselves on the wrong end of a human rights complaint and would be hard-pressed to defend their actions.

Perhaps the most damning comment came  from Jacques Parizeau himself, who has publicly stated that it goes too far. As Justin Trudeau said, “”I think when Mr. Parizeau becomes a voice of moderation in the debate, the sovereigntists have a real problem,” Trudeau said.

What should an employee do if their employer adopts the type of discriminatory policy that the PQ is pursuing? Simple: file a claim based upon human rights. And for any employer considering such a policy: DON’T. Unlike Mme. Marois and her cohorts, we should embrace the diversity of our population.

By Natalie C. MacDonald

Share on FacebookTweet about this on TwitterShare on LinkedInEmail this to someone