Dress for distress: The challenge of clothing-related legislation in 2017

The notion that governments or employers could reduce the level of accommodation to some level below undue hardship is a radical change

 

This has been a busy year for legislators to venture into the murky realm of legislating what is and what is not appropriate wear. At the beginning of the year, petitions were submitted to Parliament in the United Kingdom to outlaw organizations requiring women to wear heeled shoes. The petition was quickly rejected.

Then British Columbia banned requirements that force women to wear high-heeled shoes at work. Ontario’s Liberal Party has also put forward its own anti-heels bill.

However, recognizing that employees already have the right to refuse unsafe work, and female employees already are not allowed to be treated differently than their male counterparts, many suggest these bills provide no additional protection to workers than the laws already in place.

So, why did these unnecessary bills get put forward?

Zealous lawmakers have rushed to categorize high-heeled shoes as sexist and oppressive. Recognizing that only women wear these shoes and they are relatively uncomfortable, this was an easy categorization. The challenge is that it is not the government’s job to legislate what people choose to wear. The government’s role is only to make sure people are not injured as a result of what they wear.

In October, after roughly 10 years of discussion and debate, the Quebec government has enacted another form of clothing legislation, Bill 62. This makes it law that in order to receive any government services in Quebec, the recipient of those services must make her face visible. The intention of the law is to require persons who wear a burka or niqab — veils worn as part of a woman’s commitment to their faith — to remove the veil as a condition of receiving government services.

Following the enactment into law, the government clarified the application of this law to require a person’s removal of a burka or niqab to:

•take public transit

•attend public school, college or university

•receive medical services

•receive any other public services.

It is not surprising that many have criticized the bill for failing to accommodate the religious freedom of those choosing to wear a burka or niqab. Some have suggested this marginalizes the already marginalized, and this will be taken to the Supreme Court of Canada as a contravention of the Charter of Human Rights and Freedoms.

The purpose of the charter is to ensure all Canadians are treated equally. Human rights legislation in place federally, and in each province and territory, has been enacted to provide protection to members of our society at greatest risk for being marginalized. Specifically, and in addition to a number of other protected groups, human rights legislation makes it illegal to discriminate against persons based on gender or religion.

As a result, employers work diligently to guard against direct or systemic discrimination. Employers are required by law to accommodate employees up to the point of undue hardship.

Has the Quebec government just changed the definition of undue hardship? If yes, does the enactment of Bill 62 create a precedent for how other provinces or employers support or reject religious accommodation? Let’s consider each of these in turn.

Until now, the definition of undue hardship has been the point where an employer would experience a material financial or business hardship in accommodating an employee’s request for accommodation. While there is no prescribed amount that is to be considered material, one might safely assume a financial impact of more than $10,000 might be considered material to an organization, but that would depend on its size and financial strength.

The premise, however, is an employer has a duty to try to accommodate an individual up to a point where the employer would be harmed by this accommodation. The amount is not critical.

What is critical is the philosophy that the employer will work to accommodate the individual. Bill 62, instead, shifts the burden of accommodation to the employee. In essence, Bill 62 suggests the government — and by extension employers — are able to set the limit of accommodation to something other than undue hardship.

The notion that governments or employers could reduce the level of accommodation to some level below undue hardship is a radical departure away from religious accommodation being a government or employer’s duty. It shifts religious accommodation to being merely an option, with the degree of accommodation set for the convenience of the government or employer.

With such a radical shift away from a duty to accommodate, one might be concerned this could set a precedent for other provinces — or by extension employers — to reshape the way we interpret workplace accommodation. While this is possible, it is probably more likely that, like we saw with the U.K. high-heels petition, Canadian politicians will eventually experience a sober second thought and decide politicians have no place in the closets of Canadians.

Canada’s current health and safety and human rights legislation already protects workers against the oppression of dress-shoe dress codes. Human rights legislation that requires a duty to accommodate up to undue hardship maintains a focus on creating inclusive workplaces reflective of Canadian values. So, it is most likely politicians will walk away from focusing on what Canadians wear, and instead focus on how Canadians are treated.

Angus Duff is an assistant professor at the School of Business and Economics at Thompson Rivers University in Kamloops, B.C. He can be reached at [email protected]

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