The Supreme Court of Canada (SCoC) ruled that Sikhs were required to wear hard hats even though it was a restriction of their religious freedoms. (The seminal case on this is Canadian National Railway Co. v. Bhinder from 1985.) The Court applied a 3 part test to see if the employees religious freedoms could rightly be infringed. This test is where I think the Quebec law will eventually fall. Unfortunately that means that some provincial worker will need to be fired for wearing the Hijab, and she will also have to have enough money to raise a legal complaint (justice ain't cheep in Canada).
The test for a bone fide occupational requirement (BFOR), has 3 steps the rule must pass before its considered a justifiable infringement on religious freedoms: (adapted from the above mentioned hardhat case.)
Now looking to the “burka ban” lets go over the test.
• Step 1: Was the rule about hard hats or respiratory protection adopted for a purpose that is rationally connected to the job (safety)?
1) ScoC will have to rule if Quebec’s claim that seeing a face is rationally connected to the job of providing government service. If they can't this whole law fails right here. But if it passed we go to step 2.
• Step 2: Was the rule adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose (safety)?
• Step 2: Was the rule adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose (safety)?
2) Again the ScoC will have to decide if this law is adopted in “good faith” and if seeing a face is necessary for fulfilling that. Here each position will have to be considered. Does this face covering actually infringe on a bus drivers ability to do the job? How about the passenger? How about a call centre worker? Does not showing my face actually infringe on my ability to take a payment for a ticket? Lets say somehow the law passes this step as well, then we go continue on.
• Step 3: Was the standard reasonably necessary to accomplish that legitimate purpose? Can the employer accommodate individual employees without imposing undue hardship upon the employer?
• Step 3: Was the standard reasonably necessary to accomplish that legitimate purpose? Can the employer accommodate individual employees without imposing undue hardship upon the employer?
3) The second part of Step 3 is going to be virtually impossible for Quebec to get passed. This “Duty to accommodate” clause is a big part of what makes Canada an "inclusive" nation. Quebec will have to show that it causes an “undue hardship” on them to accommodate a worker to wear a hijab. And that there is not a solution that can be easily implemented that meats both parties needs. For instance if they claim it is a security concern, can the issue be solved by requiring the lady to lift the veil and show her face briefly and privately on her way in to the facility? Or a whole host of other workarounds for each job. And I cant see How the Quebec government is going to be able to get this passed.
Keep in mind RCMP officers can wear the hijab, its going to be really hard for Quebec to argue that a kiosk worker cant do her job wearing the same thing.
Keep in mind RCMP officers can wear the hijab, its going to be really hard for Quebec to argue that a kiosk worker cant do her job wearing the same thing.
Now a lot of the concerns about allowing the hijab boil down to a few actually irrelevant arguments.
* "If we cant see the face a criminal can get away"
This law only has bearing on those receiving and giving government services. So if you think a bank robber is going to stop and fill out a healthcare form on his way home you may have a point. But I think we can see that's not really connected to this law.
* "I cant wear a hoodie or sunglasses in the liquor store"
While some places that sell alcohol are private stores and make up their own rules, those are not Laws. Agreed that in Quebec hard alcohol is sold in government stores though. Here we see another absurd part of the law. While they could say that the customer must show their face to match their ID, this is not what the law says, it says both the customer and the worker must show their face. And as the push of my argument is that the law wont stand because of its demand that the employees show their face, which has nothing to do with the customer proving their age.
*"we have other laws saying you cant be naked in public, how is this different?"
*"we have other laws saying you cant be naked in public, how is this different?"
Again here we have a issue with the degree of the laws scope. The Indecent exposure laws, have been continually challenged to now women can walk around topless in much of Canada and it's likely that provinces that have not had the law challenged will either follow suit or simply refuse to lay charges. but again this is not related to the work aspect of the law. The "dress code" interpretation is just as open to religious freedom laws as any other part of the law,
* "The government need to be non-religious"
This is actually the argument Quebec is using to put the law into place. The mistake is that they are equating non-religious with anti-religious. The government needs to pass laws that apply to all citizens, it cannot promote or discriminate based on religious beliefs. Thats a Non-Religious stance. But by refusing to allow its workers to adhere to their religious beliefs while at work they are taking an Anti-religious stance. The claim that seeing a government worker wearing a religious item will make the average citizen falsely believe that the government is an agent of that religion is deeply condescending.
This is actually the argument Quebec is using to put the law into place. The mistake is that they are equating non-religious with anti-religious. The government needs to pass laws that apply to all citizens, it cannot promote or discriminate based on religious beliefs. Thats a Non-Religious stance. But by refusing to allow its workers to adhere to their religious beliefs while at work they are taking an Anti-religious stance. The claim that seeing a government worker wearing a religious item will make the average citizen falsely believe that the government is an agent of that religion is deeply condescending.
NOTE: Its been pointed out to me that I have used "Burka", and "Hijab" interchangeably and they are in fact different. The RCMP currently only allow the Hijab which does not cover the face.
I fell the rest of the argument still stands, if you correct my other uses of Hijab to the Burka I was thinking of. (Thanks Reese)
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