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V. Creed accommodation and inclusive design

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Key questions

  • What, if anything, is unique or specific to creed accommodation and its analyses?
  • What aspects of creed accommodation require further discussion and clarification?
  • How far does the duty to accommodate and inclusively design for creed beliefs and practice extend?
  • When and under what circumstances may one limit or deny creed accommodations?

1. Context

The concept of accommodation, in the context of religion and creed, is not a new one in Ontario or Canada. Neither is it one attributable to the demands and aspirations of an expanding, multicultural, immigrant population since the 1970s. Canadian law has long recognized a degree of religious pluralism and religious freedom in Canada, and the compromises that this inevitably requires. What is arguably new in more recent years is applying and adapting this accommodating approach to an increasingly diverse range and depth of religious/creed differences in Ontario society,[377] which can pose challenges to established norms and ways of doing things.

1.1 Purpose and aim of accommodation

It is common to hear comments that creed accommodation-seekers are seeking “special privileges” from society and its institutions.[378] In this context, clarifying the underlying goals and aims of accommodation is pertinent.[379] Far from imparting special privileges and advantages, the aim of accommodation is the reverse. Accommodation aims to facilitate equality of treatment by addressing and seeking to remedy the disadvantages encountered by minority group members in society (in the case of creed, relating to its practice) as a consequence of structuring institutions and services in ways that (often inadvertently) better meet the needs of dominant group members.[380] This is known as ”adverse effect” or “constructive discrimination.”[381]

Much contemporary resistance to accommodation appears to stem from a failure to:

  1. Recognize the ways status quo arrangements may be unequal (as discussed above, adding to the importance of developing a contextual framework for understanding creed discrimination)
  2. Appreciate how (substantive versus formal) equality sometimes requires measures to level the playing field.[382]

Rather than advancing “alien values or practices on Canadian soil,” as is sometimes suggested in situations of creed accommodation, those seeking and providing accommodations (religious or otherwise) are in fact affirming and giving expression to Canada’s most deeply held values of equality and non-discrimination, as enshrined in the Charter and in provincial human rights statutes. Some argue that shifting the discourse from “accommodation” back to its underlying value of “equality” can put public conversation around such issues on the right foot. As one scholar put it: “While it is easy to talk about ‘too much accommodation,’ ‘too much equality’ is less comprehensible [or acceptable] in our current constitutional and social contexts”.[383]

[377] This observation is made by Seljak, 2012.

[378] One Creed Policy Dialogue participant commented, making a point also affirmed in Bromberg’s (2012) paper:

Last year I worked for a large [company] and was warned against the term accommodation because of employee backlash. In the eyes of some, this gave certain people “special privileges” at the expense of others. Thus, the concept of human rights and the Commission became “dirty words,” and the management did not handle it well...There is a backlash against accommodation and we must be aware of that.

[379] Noting an upsurge in such sentiments of late, Anita Bromberg (2012) emphasizes the importance of clarifying the underlying goals and aims of “accommodation.”

[380] Faisal Bhabha (2012) uses the disability context to argue that the courts recognizing that the constructed world is not neutral but privileges the able-bodied “gives rise to the duty to accommodate as a measure of fundamental protection against invidious harm”.

[381] The (1996) Policy on Creed defines constructive discrimination:

Constructive discrimination arises when a neutral requirement, qualification or factor has an adverse impact on members of a group of persons who are identified by a prohibited ground of discrimination under the Code. Because of its adverse impact, this is said to result in “constructive discrimination” (OHRC, 2006, p. 6).

[382] As Brodsky et al., 2012, p. 36 explain in their paper, “Accommodation in the 21st Century,” focusing on the disability context of human rights accommodation:

Accommodation is not about same treatment. It is about inclusion for people...who have historically been excluded from full participation in society. In an accommodation case, the issue is not whether the claimant has received formal equality of treatment but whether the actual characteristics of the person have been accommodated so that they can access a benefit that is otherwise unavailable. As McIntyre J. explained in Andrews the “accommodation of differences…is the true essence of equality” (citing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at para. 31; emphasis added).

[383] Beaman,2012, p. 18.



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