Could headscarf ban by European Union reignite similar debate in Canada?

Reverberations from court’s decision could trickle down – especially in Quebec
By Marcel Vander Wier
|Canadian HR Reporter|Last Updated: 04/17/2017

A landmark ruling by the European Union’s (EU) highest court in March has allowed companies to ban staff from wearing Islamic headscarves and other visible religious symbols.

The European Court of Justice found Belgian security services firm G4S — which had a rule barring customer-facing employees from wearing visible religious and political symbols — may not have discriminated against a receptionist dismissed in 2006 for wearing a headscarf, according to Reuters.

The judiciary conclusion said the company was entitled to dismiss receptionist Samira Achbita if, in pursuit of legitimate business interests, it fairly applied a broad dress code for all customer-facing staff to project an image of political and religious neutrality.

Reverberations from this decision could trickle down to Canada, specifically Quebec where it remains a hot topic, according to labour lawyers.

“I’m sure it will,” said Jonathan Franklin, attorney at Montreal’s Franklin and Franklin. “(The EU ruling) certainly adds to the position that the government should have a right to get involved with people’s individual expression.”

But research has shown that religious attire is not correlated with skills, ability, productivity or ambition, according to Rupa Banerjee, associate professor of human resources at Ryerson’s School of Business Management in Toronto.

“These things are not related to one another,” she said. “That bias, that perception needs to be tackled.”

Effect on Quebec

This issue was debated as recently as November in Quebec, where the province’s third attempt in the last seven years to legislate religious neutrality was again sent back for further study.

Bill 62, “An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies,” was tabled by the provincial Liberals to provide a framework for religious accommodation requests. Critics say it targets the Islamic burka and niqab by forcing public service employees to work with their face uncovered.

A previous attempt by the party failed in 2012, as did a subsequent 2013 proposal by the Parti Québécois to ban public sector workers from wearing religious symbols on the job — that ended with the party suffering electoral defeat.

“The issue that Quebec society is grappling with is, on the one hand, reasonable accommodation and respect for religious rights, and, on the other hand, there’s a pressure that the government is placing on citizens here to conform in dress,” said Franklin.

Current provincial law, according to the Quebec Charter of Human Rights and Freedoms, insists employers make reasonable accommodations of staff, he said.

“If dress is something that will not interfere with a person’s work, then it is unreasonable and illegal for an employer to discriminate or tell them that they’re not allowed to do that, at this point,” said Franklin.

“Right now, to say a person can’t wear a head covering or a symbol around their neck expressing their faith is 100 per cent discriminatory.”

The attempts to implement religious neutrality run counter to the Quebec government’s legislative trend to protect individual rights, he said.

“We in Quebec have had a history of freedom and now having the government interfere with how people dress is an interference — something that is contrary to the freedoms that we thought were written in stone in the Quebec Charter of Rights.”

The moral authority that could stem from the EU ruling “may have more of an impact on Quebec than it has other places,” according to Montreal human rights lawyer Pearl Eliadis, president of the Quebec Bar Association’s Human Rights Committee.

She called on the government to withdraw the bill — an attempt “to impose secularism as a national religion” — following the mass shooting at a Quebec City mosque in January.

“I think the European decision will have a bit of resonance around that conversation, because they’ll be able to point at the European court and say, ‘See?’” said Eliadis. “(But) the main event is this really low standard for reasonable accommodation that will allow federal employers, provincial employers and the parapublic to refuse reasonable accommodation to any religious minority with the most minor of justifications — that’s the problem.”

Complacency concerns

The EU ruling targets Muslim women, said Renée Bazile-Jones, senior director at the Canadian Centre for Diversity and Inclusion in Toronto.

“What it really represents is fear, particularly fear of individual differences,” she said. “We are hard-wired to fear differences and the target moves over time... And the level of current discourse — the new target — is anyone who is a Muslim.”

While Canada is well-protected — with “fairly prescriptive laws” and human rights legislation that protects minorities — seeds of opposition continue to germinate periodically within certain political circles, said Bazile-Jones. In 2015, then-prime minister Stephen Harper vowed to introduce legislation requiring new Canadians to remove head coverings during citizenship ceremonies.

“We should not be complacent,” she said. “It is important for us to pay attention and be mindful. I think one of the things that we do as Canadians is underestimate the level of anger that people who feel disenfranchised feel. There is a certain level of complacency that we are not the U.S. and we’re not representative globally of the rise of conservatism that we’re seeing, particularly around European elections.”

Despite a prime minister favouring multiculturalism and diversity among citizens, Canada is still fallible, said Banerjee.

“I don’t think that we should consider ourselves to be immune to the kinds of rhetoric that has been playing out in the rest of the world,” she said. “That’s a mistake and that puts Canadian employers and Canadians in danger of becoming complacent.”

“You already see more hate crimes and more expressions of intolerance even within the Canadian context since the changes in terms of Brexit and Donald Trump’s election. The public, who are already there in the fringes, becomes a little bit more emboldened. If we don’t stay vigilant and reaffirm our focus and our values of accommodation and tolerance and inclusion, there’s no reason why we wouldn’t fall into similar kinds of public rhetoric that other places have.”

The EU ruling extends the banning of religious attire well past the public sector all the way down to general employers, said Banerjee.

“My concern is that employers and particularly those that already held these sorts of views — (who are) not open to diversity to begin with — feel a little bit more emboldened to institute these kinds of policies,” she said.

Concurrently, Canada has a chance to become a leader in foreign talent as the United States heightens border restrictions, making this an economic issue alongside a humanitarian one, said Banerjee.

“If Canada wants to maintain that perception of being a destination of choice for the most highly skilled immigrants and students, it needs to be vigilant,” she said.

“Right now, we are seen as being a destination of choice. If immigrants want to come here, we have to remain that inclusive and diverse society that people want to come to.”

Advice for HR

All of this means heightened stakes for human resources departments, said Bazile-Jones.

Practitioners should proactively work to understand their specific workforce, ensuring questions on the topic of inclusivity are included in employee opinion surveys in order to have hard data to provide corporate leaders.

“HR practitioners are crucial to the success of any organization, but they sometimes get pushed away from that table,” she said.

“But, strategically, they bring that vision of how to apply people resources in the organization to achieve objectives. So it is important to be able to look at what leaders are being held accountable for, and provide them the information that supports their success.”

It is also important for HR members to recognize their unconscious biases, and reaffirm organizational commitment to inclusion as all employees are responsible for the success of such efforts, said Bazile-Jones.

For HR to succeed, buy-in from senior management is imperative, as is religious accommodation to the extent of allowing people time to pray in safe spaces, said Banerjee. Other possible policy procedures include preventing implicit bias in the hiring process by instituting blind hiring, which removes names from resumés to ensure successful recruitment is based on merit alone.

“Those small little measures really set apart organizations to show that they’re welcoming places,” she said. “What employers need to remember is that a lot of these women, who happen to wear hijab or other religious garb, are a huge source of talent, and they should be tapping this talent rather than losing out on it.”

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