The Challenges of Reasonable Accommodation for Public Administrations

The issue of reasonable accommodation has given rise to a wealth of literature and comment since it first entered the social and legal discourse of Canada and Quebec following the O’Malley decision of the Supreme Court of Canada in 1985¹. Often criticized, the requirement to reasonably accommodate differences nevertheless stems from the desire to protect the dignity and equality of individuals in matters of Canadian public law. Section 15 of the Canadian Charter of Rights and Freedoms recognizes the right to equality of every individual, while section 10 of Quebec’s Charter of Human Rights and Freedoms prohibits any form of discrimination based on grounds such as gender, religion or handicap. The development of the concept of reasonable accommodation is the result of the implementation of these guarantees.

The challenge posed by reasonable accommodation involves the methods used to enforce our equality guarantees, coupled with the prohibition against discrimination. These have given rise to numerous controversies, particularly where religion is concerned. Just as important, although less prominent in the media, are the obligations that the guarantee of equality places on public administrations, such as in the education sector. Those obligations take on heightened prominence in times of austerity.

Some decisions of the Supreme Court of Canada have underscored the complexity of the problem. On the one hand, individual citizens cannot insist that every single one of their differences be accommodated, regardless of the state of the economy and public finances. Public administrations, on the other hand, cannot simply invoke budgetary constraints as a pretext for refusing to accommodate differences inherent in the populations they are required to serve.

Austerity policies must thus be implemented with a concern for taking into account the characteristics of all components of the clientele served by the education system, with a view to according them, to the extent possible, treatment that corresponds to the reality of their actual situation. In other words, the sharing of sacrifices must remain proportional. In addition, the constraints imposed on the various components of the education system’s clientele must be justified by the public administration.

Given the management problems inherent in implementing austerity policies, a process of reflection and study must be begun that subsequently will allow the justification of decisions made to support the commitment of Canadian society to respecting the strengths and limitations of the life of each individual. This challenge accentuates the need for rigorous management that is nevertheless sensitive to the characteristics of the varied clientele for public services.