On Reasonable Accommodation

INTRODUCTION Our modern society has long been governed by classic liberal notions advocated by thinkers such as John Stuart Mill and John Locke, Emmanuel Kant. A traditional conception of equality is generally prioritized in their work, outlining a highly formal approach premised on uniform treatment, colour-blindness and an emphasis on the Rule of Law. However, in the contemporary context of today, such an ideological hope tends to play the role of the ignorant fool, who disregards the complexity of our society. We are in need of a system that opens its eyes, stops hiding behind a “veil of ignorance” (Sandel, 1998:24) and adopts a more flexible approach. The Bouchard – Taylor Commission demonstrates exactly this notion. This essay will argue in favour of one of the major claims made by Gerard Bouchard & Charles Taylor, that reasonable accommodation, in essence a more substantive equality perspective is a necessary, if not mandatory approach that a multicultural society is in dire need of adopting, clarifying and deeply enforcing. I will discuss the logic and rational that underpins harmonization measures by exploring how social norms & ideologies have played an especially important role is systemic discrimination, then, how Canadian Law and legal institutions have played a role in constructing and maintaining racial stereotypes, and then, how the media plays an especially vital role in further denouncing minority groups. I will then provide some recommendations as to how to go about improving our situations with minority groups.

In advance, it is vital to completely grasp what is meant by reasonable accommodation. The idea originated in Canadian employment law as a response for employees' requests of leave for holidays, as long as the request did not cause the employer undo-hardship. Lori G. Beaman indicates the intention of the phrase is to capture the guiding principle by which religious diversity could reasonably be managed or governed (Beaman, 2012:1+2). According to Bouachard and Taylor, it is a creative and informal approach with the aim to dejudicialize and decentralize solutions (Bouchard and Taylor, 2008:10). It pays closer attention to the differences and variations of individuals and take's into account that they are indeed a situated subject, and not an abstract, nameless, faceless and bodiless one(Michael J. Sandel, 1998:21). It is essentially, a harmonization practice that has a greater respect and awareness for diversity and combats indirect discrimination caused by strict application of a norm which might infringe on a citizen's right to equality (Bouchard and Taylor, 2008:24). It is thus a form of arrangement, adjustment or relaxation of a rule or law to ensure equality. The rule of equality sometimes demands differential treatment...a treatment can be differential without being preferential (Bouchard & Taylor, 2008:23+25). it is a modulated, flexible conception that is more inclusive because it is more attentive to the diversity of situations and individuals (Bouchard & Taylor, 2008:26).

ANALYSIS

Social Norms and Ideologies Reasonable accommodation is the only avenue for minority groups to have their rights recognized seeing as a number of apparently neutral or universal norms in actual fact reproduce worldviews, social norms, and traditional ideologies of a majority culture or population (Bouchard & Taylor, 2008:25). The 'white' class in Canada, not only in the Quebec, has made consistent and determined efforts to maintain their own dominant identity. Bouchard and Taylor identify via the surveys, letters, comments appearing in the media, clearly that the key signs of dissatisfaction in terms of accommodations came from the Quebecers of French-Canadian origins. 71.1% of Quebecers whose mother tongue is French found our society even overly tolerant of accommodation (Bouchard & Taylor, 2008:21).

In chapter 7 of “Making Space for Mosques”, Engin F. Isin and Myer Siemiatycki explore the struggles experienced by a growing Islamic population in Toronto to exercise their religious freedoms. This was the most controversial dispute in the GTA to date, over a small El-Noor Mosque which was purchased in 1986 in a modest residential neighbourhood. It's renovation plans were to first, enlarge the worship space and second, redesign the second story to reflect the traditional mosque appearance. The plan was initially approved by the City of York's Committee of Adjustment but was then faced with a stubborn and ruthless fight against two-hundred and fifty-two residents who signed a petition and raised $16,000 to finance the appeal against the mosque. The most prominent complaints was that the parking space 'belonged' to the residential neighbours and the property value would decrease if only Muslims move in (Isin and Siemiatycki, 2004:204-205). Obviously, the predominantly christian residents of the neighbourhood did not want a Muslim presence in their neighbourhood due to preconceptions that since they are the Other, they will result in a decline in the over all quality of life or in this case, quality of the neighbourhood.

In the Bouchard – Taylor Commission, similar objections were made in the heat of pure anxiety on the basis that Quebecers had a strong sense of 'our' culture and 'our' identity and that harmonization practices are essentially “corroding democracy, equality and our most precious values”(Bouchard & Taylor, 2008:66). Therefore, it is clear how society's values may 'tip the scales' in some instances. A request whose reasonable nature is challenged might be rejected if it goes against the objectives pursued by society (Bouchard & Taylor, 2008:55).

Classical liberals such as John Locke specifically says that “the toleration of those that differ from others in matters of religion, is so agreeable to the Gospel of Jesus Christ...that it seems to be monstrous for men to be so blind, as not to perceive the necessity and advantage of it” in his Letter of Toleration (Locke, 1991:16). Thus, according to Locke, we should instead be embracing another's religion since it would ultimately be unchristian of us not to tolerate it. Locke also advocates a clear separation between the business of the civil government and the church and proclaiming that neither have the right or 'just title' to violate another individual's rights (Locke, 1991:17+26). The secular regime of Quebec also identifies that there must be a distinction between what is public and private but it does not go about saying that religion must be absent from public space (Bouchard & Taylor, 2008:43). The mosque example clearly shows how although it is ideal that the state is impartial, the only way that it really can be is if it understands the underlying reasons of the protest against establishing or exposing another culture's expression, as in the case with the El-Noor mosque. Public space is a means to freedom of expression and all minorities are inherently entitled only because “all the rights and franchises that belong to man are inviolably to be preserved”(Locke, 1991:23) 1

Reasonable accommodation is a necessary if not mandatory means of attaining fairness and equality for all citizens due to the precarious conditions and treatment of immigrants. A large part of the immigrant population has difficulty finding quality employment in proportion to the skills and experience they have acquired. Bouchard and Taylor say that there is a hesitancy to recognize the expertise of new-comers due to overly stringent conditions, general job insecurity and discriminatory practices experienced by racialized groups (Bouchard & Taylor, 2008:80).

In the documentary, Doctors Without Residency, systemic discrimination prevents foreign-trained doctors from practicing in Canada, even after they've received all the necessary Canadian qualifications. Medical professionals and human rights advocates in the film say that these doctors are simply considered incompetent or not up to the Canadian standards after being interviewed for 5-15 minutes. One of the letters of refusal indicate that the applicant is “non-competitive” but does not even specify what they mean by this term. These doctors experience systemic discrimination in which there are norms, criteria, processes, or “unspoken rules”, which in their application creates consequences, effects, that result in exclusion of these minority groups (National Film Board of Canada, 2012). The foreign doctors interviewed for the film say that “they feel unwanted, embarrassed and powerless that they cannot help those suffering”(National Film Board of Canada, 2010).
It becomes very clear that the western medical institution have underlying norms or ideologies in which they use to measure the aptitude of foreign doctors.

Even Bouchard and Taylor identify that there is extensive testimony from engineers/architects who working as taxi drivers, lawyers who are serving as clerks, judges employed as workmen, or teachers washing dishes/making deliveries. ethnic minorities are also under-represented in political staff, on boards of directors and...scarcely present in the media(Bouchard & Taylor, 2008:81). The situation in Quebec is one of worst in all North America (Bouchard & Taylor, 2008:81).

According to theorist Isaiah Berlin, it is vital to adopt a substantive perspective on equality due to the fact that we all belong to a social context, we are not a “featureless” abstract entity (Berlin, 1990:22). It is because we are reasonable and responsible agents that we require this freedom from degradation since we depend on the interaction with other persons, we have relationships and we are essentially, conditioned. He advocates that people should be recognized for these exact reasons. Hence, there should be a balance between the needs of the individual and the needs of the group (Berlin, 1999:23).

The Law in Practice Another important reason why reasonable accommodation is a critical means of maintaining equality and fairness is because of the “absolute rigour” in the application of legislation by legal institutions as outlined by the Bouchard – Taylor Commission (Bouchard & Taylor, 2008:25). We can see that the right to equality and freedom do not necessarily have as a corollary uniformity or homogeneity. According to Bouchard and Taylor, a given right may demand adjustments in treatment that must not be equated with privileges or exemptions since they are intended to remedy a flaw in the application of a statute (Bouchard & Taylor, 2008:25).

An important example of how law and legal institutions influence racial stereotypes and thus, further disadvantage a minority group is clearly outlined in the Yee Clun v. City of Regina case. A respectable, Chinese restaurant owner and leader of the Local Chinese community was denied a license to hire white women even after the Saskatchewan statute, colloquially known as the “white woman’s labour law” specifies race-neutrality (Backhouse, 1994:34-35). The morale behind the decision resided in the fear of the integration of Chinese into the 'pure white' race seeing as Chinese men were perceived to be addicts of opium, inveterate gamblers, and lusting over white women (Backhouse, 1994:35). These racist stereotypes prevented this well established individual, Yee Clun to be treated with fairness and equality because of the previous and very recent legislation that completely prohibited Chinese employers. The City Council was obviously driven by Yee Clun's identity rather than his exceptional credentials. This stigmatized group of people have experienced many disadvantages due to legislation and it even further embedded itself into the mentalities of the 'white' people. Reasonable accommodation practices is therefore, the only hope that minority groups have in order to fully benefit from the rights that are supposedly applied to every individual impartially.

According to Bouchard and Taylor, Quebec's political system is both democratic and liberal; the people are sovereign and deemed to be equal thus, they are the ultimate holders of political power. But it is especially important to note how in any liberal society, Bouchard and Taylor convey how we are protected from possible abuse by the majority (Bouchard & Taylor, 2008:36). Therefore, harmonization practices would be essential in maintaining that everyone experiences a just democratic and liberal society.

In Michael J. Sandel's Liberalism and the Limits of Justice he outlines some very important elements of John Rawls' theory of justice. One aspect is how John Rawls attempts to compensate for unfairness in the past by invoking a system known as Distributive Justice (Sandel, 1998:70). In this system, he creates a difference principle, which acknowledges the fact that people will be born into circumstances in which they have absolutely no control over (Sandel, 1998:71). Consequently, it is essential that people be acknowledged not as an abstract person who the state assumes is equal to all others, but as an individual who might have experienced more hardships than another due to the social or economical circumstances endowed upon them. This is when reasonable accommodation comes into play, if jurists comprehend this fact and are aware of the circumstances, then they will be contributing more to an over all notion of justice.

Another example of how reasonable accommodation is a necessary approach to our pluralistic society is due to the circumstances of aboriginal people. The Bouchard – Taylor Commission makes note of how their relevance is great to the main themes of the report but simply states that it will not be specifically covering the details.

In the case of Donald Marshall, a Mi'kmaq, he served eleven years of a life sentence for being wrongfully convicted of murder (McMillan, 2011:171). This case's controversy and tension that it still spurs is evident as Jane McMillan brings to light the fundamental problems in the legitimacy, authenticity and efficacy of the Canadian criminal justice system in the treatment of aboriginals. Prior to this event, there were no restorative justice processes, no Mi'kmaq lawyers, police officers and no aboriginal justice programs (McMillan, 2011:175).

According to Kitty Calavita, critical race theorists would explain this treatment as the law being a central protagonist in defining racial categories whose boundaries have come to accommodate political realities (Calavita, 2010:36). One key objective to this theory is that 'race' is not objective, inherent or fixed but instead a social construction (Calavita, 2010:61). The Canadian legal institution has long been dominated by 'white' patriarchal class of citizens that through the benefits of the law, perpetuate their supposedly right ideals, values and goals (Calavita, 2010:71)

Bouchard and Taylor identify how french – speaking Quebec espouses values of reception and solidarity (75) which contributes to one of the factors of why they hold such negative judgments on harmonization practices. We are in need of a contextual dimension of adjudication which takes into account the unique nature of individual situations (Bouchard & Taylor, 2008, 52).

The Media's Role Reasonable accommodation is an especially important method of bringing about a sense of relief to marginalized minority groups because of media's persistent actions to further alienate and label ethnic groups as ultimately dangerous and inferior. According to Bouchard and Taylor, the media is directly if not solely responsible for the tremendous amount of erroneous information and misconceptions provided to the public (Bouachard & Taylor, 2008:33)

In the case of Multani v. Commission scolaire Marguerite-Bourgeoys, the Supreme Court of Canada struck down an order of a Quebec school authority that prohibited a Sikh child from wearing a kirpan to school as a violation of freedom of religion under section 2(a) of the Charter (Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6). This case sparked great heat and debate amongst Quebecers who believed the boy was violating school regulations in carrying a weapon. But Sarah Nieman identifies the media coverage the story had that further increased the flames in Quebec society. In the March, 27 2002 issue of The Globe and Mail entitled “Ceremonial weapon,” the author, P.W. Currie states that, “Given the routine violence of our world, it's almost guaranteed that anything that can be used as a weapon, will be. Unlike other religious symbols such as a crucifix, menorah or prayer wheel, a kirpan is clearly a weapon and its intent, since it was introduced to Sikhism more than 300 years ago, was as part of a martial tradition. This is not India, and this is not the 17th century. Carrying a knife with a blade 17 cm (almost seven inches) long in public would likely get any non-Sikh citizen arrested, probably not very gently.” (Nieman, 2012, 29) This quote questions the equal treatment of all Canadians in this opinion piece but at the same time, deeming another culture's traditions as dangerous and unacceptable. Thus, the media is an active contributor to the anxiety and fear experienced by the dominant population.

in different milieus, there exists a fear of over-regulation. Interveners need leeway that allows them to take into account the uniqueness of cases and contexts (Bouchard and Taylor, 2008, 33).
· interveners hope that the principles, general framework and rules governing co-existence (the guidelines) will be clarified...a text sorely lacking in Quebec that would serve as a reference to regulate relations and the place of religion in our institutions...there is a need for an official text that identifies as a model for managing intercultural relations (Bouchard and Taylor, 2008, 34)
Bouchard and Taylor emphasize “as much as possible” citizen action, responsibility of the individual and the community to encourage deliberation, free initiative and creativity in analysis of situations (Bouchard & Taylor, 2008, 10).

With the introduction of Sharia Law into the Caandian justice system, The Gaurdian news blog identifies the various comments made towards the Muslim tribunals. Some say that “If the shariah is used in Canada, I also feel threatened here.” and “ Sharia is not coming to Canada and there will be no sharia courts. Muslims simply wish to use Islamic principles to resolve their disputes within the Canadian legal system ”.

These comments are strikingly simmilar to the data gathered by Bouchard and Taylor in the concerns the Quebecers raised when interviewed and/or surveyed.