Canadian HR Reporter

CANADIAN HR REPORTER November 13, 2017 6 NEWS EmploymentSource™ Works as hard for you as you do for your clients Our premier employment content on WestlawNext® Canada is integrated with relevant case law, legislation, expert commentary and legal memos, allowing you to manage your practice in the most efficient way possible. It's the complete mix of resources you need to confidently advise on compliance, defend occupational and health and safety charges, or prepare successful dismissal or termination strategies. Search across multiple content types simultaneously Instantly evaluate what a claim is worth with the Wrongful Dismissal Quantum Service, an interactive service with report-building functionality Review exclusive commentary by Canada's foremost employment and occupational health and safety law experts Start ahead − and stay ahead − with our exclusive collection of legal memoranda Keep current with two leading employment and dismissal law newsletters and digests For a free demonstration, call 1-866-609-5811 or visit westlawnextcanada.com/employmentsource 00233WZ-52632 LeNoury Law Proactive Advice to Management Employment Lawyer of The Year James LeNoury B.A. (Hons) M.A. LL.B 416-926-1107 • Toll Free 1-877-926-1107 • lenourylaw.com "We are in a free and democratic society. You speak to me; I should see your face and you should see mine. It's as simple as that." Quebec's Bill 62, "An Act to foster adherence to State reli- gious neutrality and, in particu- lar, to provide a framework for requests for accommodations on religious grounds in certain bod- ies," passed by a vote of 66 to 51 on Oct. 18. e measure was immediately met with heavy criticism from politicians, diversity proponents, and members of the legal commu- nity across the country, who said the bill unfairly targets the Islamic burka and niqab. But experts are mixed when it comes to the appropriate re- sponse from human resources. Ahead of more practical guide- lines on the law, employers that do attempt to implement the change will be placed in a legal quandary, said Jeremy Little, a labour lawyer at Montreal's OLS-Avocats. "People are going to find them- selves very much in between a rock and a hard place here, be- cause you do one thing, you're vi- olating the charter; you do some- thing else, you're violating the law." But linking the Quebec bill to religious accommodation isn't effective, said Jeanne Martinson, a diversity strategist and author based in Regina. "Employers have to think this out, and not just immediately say, 'It's religious and therefore we can't talk about it,'" she said. "As soon as we start talking about it in the religious context, then we lose our sense of reason and practicality." Legal considerations Previous attempts by the province to ban public sector workers from wearing religious symbols failed in 2012 and 2013. e current bill was tabled two years ago. is time, the Liberals made it happen by "camouflaging" the bill as a secularization of state, said Pearl Eliadis, a human rights lawyer in Montreal and president of the Quebec Bar Association's human rights committee. "e government has very suc- cessfully positioned this bill as a bill which ensures that the gov- ernment is secular and not reli- gious, and I think the majority of people want that," she said. "As a result of the very good salesman- ship — if you will — of the bill, it has been under everybody's radar screen until now." ere is a strong chance the leg- islation ends up mired in a legal challenge, said Little. "is law is very likely going to end up challenged, and so I think there's a very strong possibility that it's not going to be applied by a large number of people in the meantime," he said. "I think it's going to create a lot of confusion, uncertainty of what people should do, and a real lack of clarity on how people should manage these issues — and that is likely to span years while this law ends up being contested." Even Prime Minister Justin Trudeau weighed in, saying it shouldn't be the government's business to legislate what women should or should not wear. "I will always stand up for Ca- nadians' rights," he told the Ca- nadian Press. "I will always stand up for the Charter of Rights and Freedoms. It is what Canadians expect of me." Quebec's Charter of Rights and Freedoms insists employers make reasonable accommodations of staff. "The government does have the right to make laws," said Little. "However, the charter has superior status. Basically, it is a higher form of law... ese laws effectively take precedence over simple laws that the government makes." e current bill does not men- tion specific head coverings and will also allow for the possibility of religious accommodation in specific situations, said Quebec Justice Minister Stéphanie Vallée. Guidelines on how to imple- ment the law will come in the next several months, she said. "In every piece of legislation, there's a risk of it being contested by those who don't agree with it," Vallée told the Canadian Press. "We consider that this bill is solid, it's strong; it's a bill that's respectful of civil rights. We were very careful for the whole process to be respectful of the rights that are protected by the charters." And on Oct. 24, she clarified the bill, saying veil-wearing residents boarding public transit would only be required to reveal their face to the driver or ticket seller if their fare requires photo ID. "It's a bill about the way public services are rendered between two individuals," Vallée told the Canadian Press. "It is not a bill about what a person can wear in the public sphere, when they walk on the street, when they're in a park." Quebec's human rights com- mission said it will require time to fully process the legislation. "At this point, the commission will take the time to analyze the new law and understand its con- sequences," said Jean-François Gagnon, information officer for the Commission des droits de la personne et des droits de la jeunesse. Workplace implications e ultimate focus of the bill — which will make religious accom- modation very difficult in both the public sector and aspects of the delivery of services — has been muted, said Eliadis. "e face-covering thing is ac- tually a bit player in this whole exercise. It's really not the main event," she said. "e main event is that this sets a bar for religious ac- commodation — for people who are religious — so low that Que- bec is going to be the least accom- modating place in the country on these basic equality rights in the workplace." "For employers who are affect- ed by this bill, which of course is public service, parapublic service and certain organizations that may enter into contracts with government… those employers will have a lot of latitude to refuse forms of accommodation that in other parts of the country would be accommodated without even thinking," said Eliadis. "I think it's unacceptable." By passing the bill without practical guidelines, the legisla- tion could lead to something of a "social shunning," said Avigail Eisenberg, a political science professor at the University of Victoria. "e way in which this legisla- tion is written, it leaves it open to every person at every turnstile in the metro, every bus driver, every person at the public library to de- cide when the law has been vio- lated," she said. "I'm very sorry to see that the Liberal party in Quebec has de- cided to pander to the baser in- stincts of some people in Quebec, rather than show real leadership which would require them to deal with the agenda of secularism… and Islamophobia in Quebec so- ciety and Canadian society in a more imaginative way." But when people enter the workplace, they "have to play according to the game," said Martinson. "There is no common sense anymore in the sense that there is no agreed way of how we play to- gether... Every organization has its way of doing business and I think it behooves organizations more so than ever before not to assume that anyone gets it." For practical reasons, wearing a niqab — a veil that leaves only the eyes exposed — in the workplace is troubling, as it may hinder an em- ployee's peripheral vision, affect clear communication, and trigger fear in other workers, she said. "It's perfectly fine for an orga- nization and legally fine to talk about dress code," said Martin- son. "Organizations have a lot of power as to who they hire, and to say that you can't wear a niqab and work here is perfectly fine. To say that you cannot wear a hijab (a traditional covering for the hair and neck) and work here is not, because there's lots of examples where women have covered their hair throughout our culture and we see no problem with it… It's the face covering itself that is the challenge." HR practitioners need to be explicit in terms of workplace culture, leaving it less open to in- terpretation, she said. But, for now, HR departments in Quebec should maintain the status quo, said Little. "e approach I'd really rec- ommend for the moment is one of wait and see," he said. "Whenever something like this gets announced, there's obviously a huge backlash and story, but the reality is, at this time, we really don't know much about how this law is going to be rolled out on a practical basis." e effect on the province could reverberate well past HR policies, as implementation of this legisla- tion could also negatively affect future global skills recruitment in the province, said Little. "Appearances matter, bluntly," he said. "And, fundamentally, I don't think that this law makes a good impression across the country." "If you're looking to attract people to invest in your province and to build in your province — leaving aside the issues of right and wrong — you have to also be very concerned with perceptions, because fundamentally those peo- ple's perceptions matter." Employers advised to maintain status quo, for now FACE-COVERING < pg. 1 "Employers will have a lot of latitude to refuse forms of accommodation that in other parts of the country would be accommodated without even thinking."

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