Human rights and religious rights: are they equal?
The media was abuzz last week with a story about a university professor who denied a request for accommodation from a student in his on-line course. Part of the course required the student to meet with others for a group assignment. The others in this case were women. The student said that his firm religious beliefs prohibited him from meeting with women.
The professor said no. The University administration apparently got some legal advice and noted that another student who lived in a foreign country had been excused from this requirement of the course and tried to override the professor’s decision. Who was right? What is the law? Whose rights trump whose?
First the law is not clear on this point. The university got what I would call very conservative advice. The person most likely to file a human rights complaint was the male student not the females that were denied the joy of his company. They greased the squeaky wheel. The university was right in noting that it was possible to accommodate the student since it had happened in other circumstances. It said the accommodation would not impact the rights of others. This reasoning assumes that the reason for the request not to have to meet with the group are irrelevant and that the granting of the request has no impact on anyone else.
Let’s analogize to a workplace situation. Wade works for a manufacturing company and by coincidence has worked in an all male department for the three years he has been there. As a result of reorganization Wade is told that he is being moved to another department mostly populated by women with whom he will need to work. The women are told that Wade will be transferring over. Sean also worked with Wade in the all male department. Sean is being transferred to the same department as Wade. He provides a note from his doctor confirming that Sean has a rare allergy to a chemical used in that department and can’t be transferred. The employer appropriately accommodates and puts him somewhere else. It could put Wade somewhere else too if it wanted to. But should it?
Now imagine that you are a woman who has been told that Wade will be joining your department next week. Then your supervisor comes and tells you that Wade will not be coming since Wade’s religion discourages him from speaking to women in public to whom he is not related and the employer supports Wade’s request for accommodation and is going to move him elsewhere.
As a woman, would you walk away confident that you employer really supports equality in the work place? There is no way around it. When you accommodate a request you are condoning it. You are accepting that it is a legitimate and valid request. Most women would be appalled, upset and demoralized by such an announcement.
Discrimination is not always about losing a job or a pay raise. Discrimination is often about how we make people feel about themselves.
Now replay our analogy and replace the word “women” with “people of colour” or “gay people”. Are we really obliged by Human rights Legislation to stand back and say “ Oh well, if that is what their religion says then we have to accommodate”? I think not. Our Charter of Rights says we are all equal.
On the way to work today I heard an expert being interviewed on CBC on this story who vacillated endlessly. Human rights it appears is all about compromise and negotiation. It often is but sometimes it’s just about principle. Sometimes human rights are absolute.
Perhaps sooner or later we are just going to have to out and out admit that the right to be free from discrimination based on your gender; colour; sexual orientation and other similar characteristics take precedence over rights to religious accommodation.
Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.
As published in The Hamilton Spectator, January 13, 2014