Friday, January 10, 2014

A "Hierarchy" of Human Rights?

There was a story in the Toronto Star yesterday, picked up in a column in the National Post today, relating to a York University student asking for religious accommodation that he not be required to "meet in public with a group of women" - most of the course was online, with the exception of one in-person focus group assignment, from which the student asked to be excused.

The Dean sought legal advice and determined that the student's request should be granted, but the professor defied the Dean and - with the rest of his department - created a new policy that required him to reject the request.

It's not hard to see how the request would be controversial.  The underlying reason for the request is deeply sexist, even if under the umbrella of a religious proscription (good faith or not).  The professor, according to the Star, sees the Dean's response as having prioritized religious rights over women's rights.

On this, at least, the professor is wrong.  The Dean's response makes a great deal of sense, from a legal perspective, once viewed in the right light.

From a sociological point of view (and, incidentally, it was a sociology class), I see the professor's argument.  "In order to meet an instance of a religious requirement we have tacitly accepted a negative definition of females."  Certain religious beliefs and cultural practices are distinctly misogynistic, placing women in a subordinate role to men.  As a society, how can we reconcile tolerance and accommodation of those beliefs, with our own convictions (both social and legal) that men and women are equal?

I've seen a number of instances where human rights are alleged to conflict.  The reality is that such conflicts are actually exceedingly rare, and this case is not one of them.

The Duty to Accommodate

The Human Rights Code requires service providers to reasonably accommodate religious requirements up to the point of "undue hardship".  In other words, for an employer to impose a sweeping uniform requirement that conflicts with religious dress requirements, and refusing to make exceptions on religious grounds without considering whether or not it's practical to do so, may well be committing unlawful discrimination.  However, permitting ceremonial weapons on airplanes is probably going to fall beyond the limit of "undue hardship", and refusing to waive justifiable safety-related uniform requirements will not generally be seen as unlawful.

So there's a line, if it isn't always a clear one.

In this case, we have an individual seeking religious accommodation in the form of being excused from a certain assignment.  The accommodation he sought, from the report, appears to be exactly the same as that given to other students studying abroad who were therefore unable to perform the in-person requirement.  That suggests against the accommodation being 'undue hardship' - the only difference is that the professor feels that the religious beliefs underlying the request are demeaning to women, and that he doesn't want to be complicit with such demeaning religious beliefs.

I strongly support gender equality.  I find many religious beliefs to be offensive for that reason.  Yet, however strongly I may disagree with a particular religious belief, that in and of itself is not sufficient to conclude that it is not worthy of reasonable accommodation up to the point of undue hardship.

Offence to somebody else's statutory rights likely will be 'undue hardship'.  But that doesn't appear to be going on in this case.  He's asking to be excused from the group, and it's unlikely that that's much loss for the group.  If he were asking for the women to be removed from the group instead, or to be required to cover their faces, etc., then that would be clearly absurd, clearly a violation of the rights of those women, and clearly not something the University could be expected to do.

As it stands, his request was a discreet email to the professor, asking for accommodation of his religious beliefs, and there's no reason to think that granting the request would have caused any harm of any kind whatsoever to anyone.  And, moreover, the substance of the request itself is something the University is prepared to grant in other circumstances.  This is why the Dean's legal advisors presumably would have recommended granting the request:  There does not appear to be undue hardship.  It's not a case of one individual's rights up against another individual's rights.  It's a question of whether or not an individual who maintains religious beliefs which are offensive in the abstract is nonetheless entitled to protection against discrimination for those beliefs.  And the answer to that question would almost certainly be yes.

Is This Belief Real?

Challenging the bona fides (good faith) of a particular religious belief can be a risky venture.  It may well be that this guy just doesn't like working with women, and is veiling his sexism in religious beliefs.  Indeed, the wording of his email, emphasizing that the majority of his group was women, implies to me that it would be less objectionable if the group simply had fewer women.  That would suggest against a hard-and-fast "don't work with women" rule, which would undermine a claim to be entitled to accommodation.

Still, there are countless religious sects, cults, denominations, etc., and many people have some pretty crazy sincerely-held beliefs.  The closest I've seen to this was a workplace run by Christians whose beliefs prohibited men and women from eating together.  (This was a non-exempt workplace, and so the extent to which religious dogma infiltrated company policy was deeply problematic, but that's another matter.)  Ultimately, it isn't hard for me to imagine that there are people with sincerely held beliefs to the effect claimed by this student.  (I'm broadly familiar with certain scriptures within Judeo-Christian theology, for example, suggesting that one becomes 'unclean' by touching anything touched by a woman who is menstruating.  I'm not entirely sure how one who subscribed to that belief could put it into effect in a modern society except by limiting contact with women.  Though my understanding is that it's possible to purge the resulting state of being 'unclean' by bathing and washing one's clothes...which is good advice for anyone touching anything touched by strangers.)

However, if it is a hard-and-fast rule against congregating in public with groups of women, this guy is in for a rough ride in the real world, at least in Canadian society.  Even if one assumed that this guy has a legitimate human rights complaint (not saying he does; I don't necessarily know all the facts), how would he pursue it?  The Human Rights Tribunal is a public tribunal, and a great many human rights lawyers and adjudicators are female.

I highly doubt that the HRTO would accede to a request for a male adjudicator, even if it's for religious reasons.  Likewise, if the representatives and lawyers for the responding party were female, there's really nothing he could do about that.

What If Every Male Said That?

You'll note that part of my argument above is that nobody - in particular, none of the women in his group - will likely suffer any harm of any kind whatsoever by his request being granted.  (Publicity notwithstanding, they shouldn't really have even known about it.)  Of course, if it weren't just one person making the request, but a widespread social phenomenon in a community, then that could harm the program and the female participants in the program.

In a human rights context, it's widely accepted that it's no defence that a person isn't substantively harmed by the discrimination.  (Relevant to damages, but not a defence to an allegation of a violation of the Code.)  If I said, "Sorry, I don't serve Scots", the reality is that there are plenty of other lawyers in this city ready and willing to serve Scots; Scots will not be rendered unable to obtain legal services unless my hypothetical prejudices became widespread.  (For clarity, the prejudice is purely hypothetical - I have Scottish heritage myself, if my Scottish Gaelic surname didn't give that away.)  At the end of the day, that somebody else will pick up the business I've turned away is not the point.

However, when we're looking at the duty to accommodate, the analysis changes.  There's a budding concept in law called "saturation".  Mostly theoretical at this point, but I consider it fundamentally sound.  The case in point is this:  You operate a 7-day-per-week call centre in small-town Quebec, with rotating shifts.  One day, an employee comes to you and says, "I'm Catholic, and my Priest recently reinforced that Sabbath observance is of utmost importance to my eternal soul, so I can't work Sundays anymore."  Accommodation analysis says you figure out whether it will be 'undue hardship' to schedule others into his place on Sundays instead.  In a large call centre, shouldn't be a problem.  You tell the employee, "Sure, we can work with that."  Five minutes later, a second employee comes in with the same request.  Okay, fine, accommodating two employees who can't work Sundays isn't a problem.

But where it becomes a problem is here:  In small-town Quebec, almost all of your employees will be Sunday Sabbath observers, and likely all in the same congregation, too.  If the local Priest is telling his parishioners not to work on Sundays, he's talking to almost all of your employees, and any of them who listen will come seeking accommodation, and suddenly most of your workforce is looking to be excused from the Sunday schedule, to the point that, if you accommodated all such requests, you would no longer be able to properly staff your operations on Sundays.  That's almost certainly going to be relevant to the question of "undue hardship".

Likewise, if every male in the class claimed that they needed religious accommodations because they couldn't work with women, that would have a result with very different considerations than the instant case.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

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