Published Criteria for Reasonable Accommodation Under Quebec’s Face Covering Law

On May 9, 2018, the Quebec government published its criteria for reasonable accommodation under an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (the Act, previously Bill 62) that requires among other things, Quebecers to leave their faces uncovered in order to provide or receive public services.

Under the Act, employees and members of public bodies and certain other bodies, as well as elected persons, must exercise their functions with their face uncovered. In addition, persons who request a service from one of those persons must have their face uncovered when the service is provided. These obligations aim to ensure quality communication between persons, allow the identity of a person to be verified, and for security purposes.

Last December, a Superior Court justice stayed key provisions of the law, ruling the law was incomplete until the province outlined the rules under which exemptions could be granted through reasonable accommodation.

The guidelines is supposed to assist public bodies providing public services in analyzing the requests for reasonable accommodation they receive, not workers on the ground (rank-and-file government employees). These guidelines do not dictate the decisions to be made when dealing with a request for an accommodation but, instead, they specify the steps for dealing with a request and the criteria that must be met for the request for an accommodation on religious grounds to be granted. In so doing, according to the government, requests for accommodations will be dealt with objectively.

The Minister points out that “Each request for accommodation is unique and must be examined on the basis of the context that gives rise to the request. As a result, the guidelines do not set a single framework for analysis but, instead, define the conditions that must be met for the request to be granted.”

The Act requires that a public body must designate a person as an accommodation officer (person exercising the highest administrative authority). The accommodation officer must take the necessary measures to ensure compliance with the guidelines and the provisions of the Act in dealing with requests for accommodations on religious grounds.

According to the guidelines, every request for an accommodation on religious grounds must be the subject of a personalized assessment. The public body must carefully analyze the request. However, it does not have the obligation to accept every request. The analysis process is comprehensive and must be carried out objectively, regardless of any opinions, beliefs, biases or stereotypes that are likely to skew the analysis.

As stated in the guidelines, the six conditions that must be taken into consideration when considering reasonable accommodation include:

  1. The request must result from the application of section 10 of the Charter of human rights and freedoms. Section 10 of the Charter states the principle that every person has a right to full and equal recognition and exercise of their human rights and freedoms, without discrimination based on one of the grounds provided for therein, including religion. It provides that discrimination exists where a distinction, exclusion or preference has the effect of nullifying or impairing such right. Identification of the rule or practice and of its effects on the person making the request enables the body to understand why the person claims to be discriminated against. It is important to bear in mind that the intent to discriminate is not necessary to cause discriminatory treatment. A request that is not based on religion is not concerned by these guidelines. The notion of religion includes: to believe or not to believe, to belong or not to belong to a religious denomination, as well as to practice a religion or another or not to practice any;
  2. The request must be serious, in other words based on a sincere belief in the need to comply with a practice that is part of the applicant’s faith or with a religious belief;
  3. The accommodation requested must be consistent with the right to equality of women and men and the right of every person to be treated without discrimination based on a prohibited grounds mentioned in section 10 of the Charter such as race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. This criterion is assessed by taking into account the effects of the requested accommodation on other users and the personnel members of the body dealing with the request, not on the person making the request;
  4. The accommodation requested must be consistent with the principle of State religious neutrality. This stems from the freedoms of conscience and religion protected by the Charter. Personnel members of public bodies must be religiously neutral in the exercise of their functions. Moreover, neutrality is required of institutions and the State, not of individuals. This means that an employee of a body concerned who wears a religious symbol while performing his or her work would not be violating the principle of State religious neutrality;
  5. The accommodation must be reasonable, in that it does not impose undue hardship with regard to, among other considerations, the rights of others, public health and safety, the proper operation of the body, and the costs involved. Undue hardship is assessed on a case-by-case basis, taking into account the specific context of the body concerned and the impact of the requested accommodation;
  6. The person making the request must have cooperated in seeking a solution that meets the criterion of reasonableness. The requirement to seek a solution lies with the body concerned and also with the person making the request, who cannot expect a perfect solution but a reasonable one. When the cooperation of the person making the request is required, that person’s failure to do so would cause the request for an accommodation to be dismissed.

The guidelines are posted on the website of Québec’s Ministère de la Justice and will be examined by the competent parliamentary committee.

Due to the establishment of the above guidelines, sections 11, 13, 14, 20 and 21 of the Act will come into force on July 1, 2018, as provided for in the Act.

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