Secularism or discrimination?
Quebec’s ban on religious symbols for public servants a strike against diversity and human rights
Jun 24, 2019
Bill 21 in Quebec bans the vast majority of public servants from wearing religious symbols. meunierd/Shutterstock
By Jeffrey R. Smith
Dress codes are usually a reasonable thing for employers to have. It’s within their rights to dictate what’s appropriate for employees to wear — within reason, of course. If a clothing requirement isn’t reasonably connected to the job and risks discriminating against someone’s characteristics under human rights legislation, then it’s not going to pass muster. Unless the employer happens to be the Quebec government, after new legislation it has just passed.
Last week, the Coalition Avenir Québec provincial government — led by Premier Francois Legault — passed Bill 21 after a marathon debate session. The bill effectively bans public servants from wearing any religious symbols, with the only exceptions being daycare workers, private school teachers, and some public-school teachers who were hired before the bill became law. In addition, the new legislation prevents anyone providing a public service from covering their face.
Not surprisingly, this move has drawn criticism from many sources since the bill was introduced, including Prime Minister Justin Trudeau saying, “It’s unthinkable to me that in a free society we would legitimize discrimination against citizens based on their religion.”
Normally, Canadian workers — especially government workers — are given a fair amount of freedom in wearing religious items — from police officers wearing turbans to government clerks wearing hijabs or Star of David pendants. Religion and creed are protected grounds under human rights legislation, which basically means a worker can’t be prohibited from wearing religious items if their beliefs require them, or they simply want to represent. The only exception is if there is a legitimate work-related reason that makes it difficult or unsafe to wear the items — such as hardhats instead of religious headgear on a construction site, for example.
This freedom is protected in the Canadian Charter of Rights and Freedoms, but the charter has a clause that allows provinces to declare an act of legislation to be notwithstanding certain sections of the charter — a declaration that is valid for five years before requiring renewal. This effectively allows a provincial government to avoid the charter’s guarantee of “freedom of conscience and religion” with such a declaration.
Obviously, this is a controversial move on the part of the Quebec government regarding its employees. Is it a reasonable move? Is it a necessary one?
The Quebec government has defined the bill as a secularism bill, stressing that removing religious symbols from its employees will ensure its services are perceived as equal for everyone receiving them with no preferential treatment. Supporters argue the presence of religious symbols can raise the spectre of discrimination or unfairness for customers. But is it possible the reverse could be true?
Canada — and Quebec — has a wide variety of people of different races, religions, and beliefs — some new to the country and some who have been here a long time. What better reflects that than seeing that diversity reflected in the people providing services from the government — which is supposed to represent, if not reflect, the people? If no religion-related clothing or symbols are allowed on government workers, there could be the potential to intimidate someone of a minority religion or group seeking help with a government service, or even applying for a public-sector job.
And while the Quebec government has declared Bill 21 to be notwithstanding the charter, human rights don’t just go away. The province has already been under scrutiny regarding its attitude towards Muslim clothing and symbols — see the 2017 legislation banning face covering for those receiving public services, seen as largely targeting hijabs, niqabs, and burkas — and now the spotlight is shining even brighter. And while the province has faced criticism from federal and provincial leaders across Canada, it’s also likely some international human rights groups are keeping an eye on the situation.
It’s still possible that at some point, the province could face a human rights challenge from or on behalf of its employees — even Quebec’s own Charter of Human Rights and Freedomsstates: “Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.”
Until that day, it looks like Quebec public-sector employees who believe in incorporating their faith as part of their daily wardrobe will face discrimination every day they go to work.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.