How much government accommodation can you expect because of religion or a disability?
Human rights legislation and related case law set the parameters
Some Canadian Border Services Agency officers were upset recently after their managers allowed a small group of Hindu priests to avoid being screened by female guards at Toronto's Pearson airport. It was an incident that highlighted the challenges that can emerge around governments accommodating people based on religion, disability or other needs.
When it comes to government services, "the basic rule is you have to accommodate unless there is undue hardship," says Karen Busby, a professor of law and director of the Centre for Human Rights Research at the University of Manitoba in Winnipeg.
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Undue hardship usually relates to two things, she adds. One is whether accommodating someone would create a financial burden that is too great. The other is if there is a safety issue involved.
When it comes to religion, Busby says, "what we accommodate are not preferences, but … religious beliefs. Most religions have some flexibility around the margins."
In Canada, human rights legislation and related case law set the parameters for making exceptions from the norm.
Most of the time, questions of accommodation for government services arise around barriers that members of the public might face because of special needs.
"So you have to accommodate people in a wheelchair, you have to accommodate people who have a pacemaker [because] it might not be safe for them to go through screening mechanisms," says Busby. "Those accommodations are generally easy to make."
At correctional institutions in Ontario, for example, the newer facilities, which house the majority of inmates, now have cells equipped for people with disabilities, says Brent Ross, spokesperson for the Ministry of Community Safety and Correctional Services.
Chapels and worship areas
Inmates’ religious beliefs are also looked after through interfaith chapels, aboriginal programming and worship areas, he said in an email. Diets are provided appropriate to an inmate's faith.
If a strip search or medical procedure is required, and an inmate requests only staff of a particular gender, the ministry will ensure that the main staff person doing the procedure is the same gender as the inmate, Ross says.
From Busby's perspective, the situation involving the request from the Hindu priests doesn't appear to enter into the realm of creating an undue hardship.
But she says there is a different principle that could apply in such a situation, and that is whether the accommodation made is "contrary to fundamental Canadian values."
"That's a trickier question I think, and it's something that's not well defined in law."
She also suggests the airport case is somewhat similar to one that arose at York University in Toronto earlier this year.
In that case, a male Muslim student's request not to work with women sparked controversy. But one element of that story that was often lost, she observes, is that "when there was a little push put on him, he said 'Of course I will work with women.'"
There are times, she says, "when Canadian values say if you're going to be in public life, in some way, you need to be able to interact with men and women."
Contrary to public policy?
The question that might be addressed in the airport instance, she suggests, is "Is it contrary to Canadian public policy to allow men to avoid talking to a government official simply because they're women, and I don't think the answer to that question is obvious."
What we accommodate are not preferences, but … religious beliefs. Most religions have some flexibility around the margins.-Karen Busby
Busby said she thinks it is important for Canada to have provisions for religious accommodation.
But she sees a question lingering around the situation involving the Hindu priests, and that is whether it is absolutely clear that their religion precluded them from dealing with women in any way.
"If that's true that they cannot deal with women under any circumstances at all then probably a religious accommodation is necessary unless that's something that courts and adjudicators would say is contrary to fundamental Canadian values."
At ServiceOntario offices, where residents go for everything from driver's licences to health cards, the goal is "to make reasonable accommodation where appropriate on grounds covered in the Ontario Human Rights Code," says spokesperson Cynthia Vukets.
Accommodations based on religion are made around photos and head coverings.
"Individuals who might object to having their photo taken on religious grounds in view of the public for example, they can be accommodated by having their photo taken in a private room," says Vukets.
Accommodations can also be made for a person to have a photo taken in a room with only women present.
Unveiling in privacy
Head coverings are allowed for photos taken in ServiceOntario offices if they're worn for religious or medical reasons, and as long as they don't obscure the person's face or facial features.
"A female customer who wears a veil for religious reasons could be allowed to unveil in privacy and have her photo taken by a female customer service representative," says Vukets.
Employment situations are also prime places where questions of accommodation arise. These can include scheduling to accommodate religious holidays or child-care arrangements, and resolutions can vary case by case.
Busby points to a situation where a female Sears employee, because of her religion, refused to work on Saturday because it was her Sabbath.
"In retail, everybody has to work on Saturdays, but the court said it's not an undue hardship for Sears to have an employee who doesn't work on Saturdays," says Busby.
But if a business were a two-person operation, it might be an undue hardship to have an employee — or half the workforce — who didn't work that day.