1 Introduction
Diversity, integration, discrimination, equality, and equity are some of the trending words one may have seen in advertisements at all levels. Businesses seem to bet on a better image when their employees come from different cultures, are of different sexes, and practice different religions. Businesses are right: the integration of minorities and the diversification of the society are ongoing social problems that regularly get the attention of the media. Advertisements that show smiling employees – women and men, people of color, women in headscarves and men in turbans– demonstrate an effort to consider all people. They ensure a feeling of trust and goodhearted diversity management: “Love all, serve all.”1
Addressing integration of minorities and coping with differences, however, is rarely easy. Equality and non-discrimination are too general to be addressed punctually and effectively. The issues related to equal treatment often come from systemic and historical patterns rooted in our social habits. If a policy is discriminatory, one may not even notice it. For instance, the strong resistance to small businesses opening on Sundays in Switzerland is discriminatory: it is based on a Protestant and Catholic historical tradition with no regard for other religions’ customs. For Jewish and Adventist people, Saturday is the established “rest day.” Weekly organization therefore is disadvantageous for some religious minorities, it perpetuates a social scheme of inequalities for those groups. Most people native to Switzerland or Western Europe will not
Equality and non-discrimination play a special role in the human rights family and are at core of the integration of minorities. If one correctly addresses structural discrimination, it can promote integration.
Paying attention to the social context allows businesses to target the correct level of equality to pursue. Indeed, the United Nations Guiding Principles for Businesses and Human Rights (“ungps”) require businesses to not ameliorate, nor to contribute to, such discrimination. This means they should take into account discriminating social patterns and address them. The only way to do that is to pay attention to the context. The interpretative guide related to the ungp
Since 2011, the ungps have set an authoritative standard for businesses to use to respect human rights. These guiding principles are not binding law, but they clearly represent an important first step toward the application of human rights in private relations. The ungps are also a symbolic tool for recognizing the social role of businesses in integration, and their impact on the spread of the global respect for human rights worldwide. They contribute to the new vision of human rights and its expansion in all legal orders.
2 A Very Brief Lexicon
2.1 Equality – Discrimination – Diversity
This chapter deals with the integration of minorities and vulnerable groups through employment. It touches on several concepts that are relevant to this
The term “equality” refers to the principle that all people should be treated equally.3 It is not a right to fair treatment, but a principle that guides authorities in their activities.4
On the contrary, the term “discrimination” refers to the “right” to be treated in the same way as another person in the same situation, or the right to be treated differently from a person in a different situation.5 This definition implies a comparison between two people, one of whom has a characteristic
For some time now, the term “structural discrimination” has been used to highlight the fact that certain forms of discrimination are rooted in the habits of society.
Reasonable accommodation, to be discussed later, is a tool for managing diversity. It takes social structures that may be disadvantageous to minorities into account and helps to combat structural discrimination.
2.2 Integration – Inclusion
I limit myself to the term “integration” in order to include all minorities and vulnerable groups. The term “inclusion,” which can be understood as a synonym, is more often used for the integration of people with disabilities. The term “integration” is – to me – more comprehensive.
3 Integration through the Workplace
3.1 The Workplace: Place of Diversity and Integration
The social role of the workplace is no longer questioned: being devoted to a job is part of life and is often a socially expected behavior.
Being part of a workplace is being part of a small social cell, permeable to the rest of the Society.
Socially, a diverse workplace also reinforces the social contract between all human beings: being confronted with diversity at work helps to overcome a possible “cultural shock.” Interpersonal conflicts can be more easily avoided because curiosity and mutual understanding are promoted.14 Thus, the
3.2 Equality and Integration: Two Sides of the Same Coin
It is impossible to promote an integrative environment without also promoting equality. We must understand these two notions as two sides of the same coin. Equality may only be a formality, but integration asks for more. It implies a strong will to include everyone, recognizes a person’s right to be whoever they want, and their right to be part of the business.15 Thus, it goes further than equality but implies that the latter is also fulfilled. It would be unimaginable to achieve integration in a workplace if discrimination is still strong.
For some, the concept of diversity underscores the idea that one admits and understands variations of characteristics between human beings.
In that aspect, integration and equality complete each other pretty well: one imposes moderation in creating disadvantageous and discriminating behaviors, and the other implies the implementation of positive measures in order to ensure integration of all.18 If one wants to address the problems with equality that society faces, a transversal, global view should be taken. In the process, integration of diversity will ensure the good application of equality and reinforce social cohesion.19 This has idea has been recognized by the Human Rights
4 The Workplace according to the ungps
4.1 Common Considerations
The ungps are accompanied by an interpretative guide meant to demonstrate the correct understanding of the guiding principles. The interpretative guide should not be seen as creating more duties for States or businesses, but instead an effort to set a clearer vision of the ungps’ content. For instance, the interpretative guide explains what “human rights” are, according to the ungps. This concept, however universal, must be clearly defined to be effective. The interpretative guide gives the minimal standard: human rights, according to the ungps, are the rights comprised in three instruments: (1) the UN Declaration of Human Rights21 (undhr), (2) the International Covenant for Civil and Political Rights
One may notice that the two legally binding Covenants that complete the UN Declaration are separated according to the type of rights: the civil and political rights on the one hand, and the economic, social, and cultural rights on the other hand.25 These two categories also introduced a new phrasing: civil
4.2 Transversability of Human Rights
4.2.1 The Principle
Transversability means that human rights must be guaranteed at all levels of society, including in private relationships. The principle presumes global actions from States in order to intervene in private law and adopt clear legislation that creates private liability for human rights violations.
Rights requiring certain services from authorities are unpopular among States. Often considered not directly applicable, social rights are rarely translated into domestic rights,28 and States are not considered litigants when it comes to social violations. This observation is even more true in situations where social rights commonly require protection from private behaviors. As one knows, authorities refrain from intervening in the private field, so social rights remain a goal to achieve but they are not rights that individuals are entitled to.29
From the beginning, the Committees in charge of the two Covenants claimed a common vision. Social and Civil rights are equally important and should be respected and protected equally.
4.2.2 ungps and Transversability
The ungps address transversability by involving businesses in the respect of human rights.
The ungps are one of the first official documents to demonstrate a transversal logic of human rights:37 its principles invite people to pay attention to
4.3 The Vulnerability in the UN System and the ungps
4.3.1 The Notion
It has been said that the ungps interpretative guide asks States and businesses to pay special attention to “vulnerable groups.” This notion has appeared in many UN documents over the last decade. However, the concept is still highly contested. The UN Office for Disaster Risk Reduction is the only body that has attempted to define the concept.39 According to the Office, on the one hand, vulnerability may be defined as a characteristic of societal entities ascribed to particular groups that are produced along sociodemographic markers.40 For instance, women and the elderly would be defined as vulnerable because their proper characteristic (sex and age) are socially perceived (not necessarily rightly) as diminishing a person. On the other hand, vulnerability could also speak to what structural factors hinder individuals from coping with extreme events.41 For instance, autochthones and other cultural minorities are vulnerable because their capacities to reach the same wealth situation as other groups are disregarded. According to the Office for Disaster Risk Reduction, both visions of vulnerability are necessary today to cope with all social envisions and reactions that “produce” vulnerable people. As vulnerability is part of life itself, one must accept its existence and its necessity.
Other UN bodies, such as the Human Rights Committee, have not distinctively addressed vulnerability, but they refer to the concept when they discuss equality, and non-discrimination.42 There is no doubt that all these notions are linked, and their overlapping characteristics make their differences sometimes
For their part, The ungps refer only to vulnerability generally and do not rely on a specific definition. In the Guiding Principles, as well as in the interpretative guide,43 businesses are asked with paying special attention to vulnerable groups in order to avoid contributing to or exacerbating the discrimination they are facing.44 Beneath this broad recommendation lies all the complexities embedded in the vulnerability concept: it is highly contested and struggles to find common understanding that would allow a clear path to its addressment.
The ungps take part in the general UN system and recognize that some groups suffer from inequalities because of their situation. They are vulnerable. Thus, the ungps participate in recognizing and expanding of the notion. They want businesses to “pay attention” to and understand vulnerability.
4.3.2 The Contextual Understanding of Vulnerability
Being vulnerable is contextual. Vulnerability comes from the environment surrounding people and their incapacity to change their situation.45 It emphasizes a position of weakness. Being vulnerable does not necessarily imply external discriminatory behavior. A detainee is considered to be vulnerable per se, because he or she is restrained in her freedom and must comply with rules imposed on her because of her status of detainee. To the contrary, women are often considered vulnerable because they suffer from discrimination more often than men, and their disadvantageous situation mostly comes from stereotyped induced behaviors.
Vulnerability implies a global understanding because it cannot be reduced to one feature or one factor. It requires deep analysis of the historical and social context in which the person evolves. It also means that if a person is vulnerable in a certain situation, he or she is not necessarily vulnerable in any situation.46 For instance, a detainee is vulnerable as long as he or she is in jail
In sum, vulnerability is a circumstantial concept. It needs a global approach and a broad interpretation that includes all potential discriminatory circumstances. Understanding vulnerability is not an easy task; it takes its roots far in history and in implied (and unconscious) behaviors. One can consider now why vulnerability is a complex notion that is often misinterpreted.47 Vulnerability is the very example of the urgent need to adopt transversal and interdependent policies. Because of its background, it needs to be globally comprehended and addressed.
4.3.3 What Does Paying Attention to Vulnerable Groups Mean?
Paying attention to vulnerable groups does not imply understanding vulnerability per se or to offer compassion as a remedy. To pay attention means to recognize that the society is not integrative and that some people are marginalized.48 This acknowledgment is the first step to an inclusive society that allows special measures to include vulnerable groups, or simply to accept the vulnerability as a worsening element in a discrimination case. When the ungps require businesses to pay attention to vulnerable groups, they mainly ask that businesses not take any action that would degrade a vulnerable person’s situation. This applies to employees as well as endemic population.49
The ungps ask for a general will to be better at human rights’ assessment from States and businesses and promotes a more equal workplace and equal opportunities. Businesses are sensitive to their image. Openly paying attention to vulnerable groups and offering them good job conditions may improve their reputation and the public diplomacy. From an economic point of view, paying attention to vulnerable groups may also be good for businesses and consumer trend development.50
5
So, this chapter has offered a vision of integration and equality as goals to achieve. Now, I will address the “how.” Reasonable accommodation is argued here as a promising tool that enhances integration and equality for all in the workplace. I will argue that providing reasonable accommodation also benefits business operations. Compromise and dialogue between the employees and their hierarchical counterparts are the key elements in this concept.
5.1 Reasonable Accommodation as a Key Concept
Reasonable accommodation should be understood as an interesting way for businesses and employees to take advantage of differences. This process is clearly compatible with the ungps and the kind of workplace they advocate for.
5.1.1 The Notion
Reasonable accommodation is a process born in the United States in 1965.
Hardison was a long-time employee of Trans World Airlines, which operated 24/7. Because of job hours’ constraints, he worked shifts on Saturdays, Sundays, nights, and days. During his employment, Hardison religiously converted to Adventism. According to his beliefs, he was obligated to observe a rest day on Friday nights and Saturdays. Hardison’s employer, Trans World Airlines, refused to accommodate his beliefs by changing his work schedule, and they fired him after he did not show up for a Saturday shift. He was denied access to employment benefits because Trans World found him at fault. The Supreme Court introduced reasonable accommodation to the American system with that case: they ruled that Hardison should have been entitled to specific rights during this religious shift change request. The business should have
One should easily note that the key element is the interpretation of “reasonable” as an allowance for a margin of appreciation. Reasonableness is context-dependent, and its interpretation changes wherever it is applied. For instance, the United States have a strict vision of what is “reasonable”: granting Hardison’s request would have been unreasonable for Trans World Airlines because the shift requested by Hardison is reserved to senior employees, which Hardison is not.
To the contrary, Canada (which also developed a reasonable accommodation obligation shortly after the United States) applies a more flexible interpretation and applies the concept in any situation featuring a minority characteristic that is discriminated against.
The obligation of reasonable accommodation does not depend on the result; it is an obligation of process.
5.1.2 The Three Features of Reasonable Accommodation
The key element of reasonable accommodation is dialogue. To engage the process however, one must be placed in a disadvantageous situation. This is the first requirement to start the accommodation process. Once one recognizes that he or she is faced with the disadvantage, he or she may ask for an accommodation. This request must lead to a constructive dialogue between the person and the party responsible for the rule creating the disadvantage (an employer or an authority, for instance). An accommodation that fixes the disadvantageous situation should emerge from the dialogue. However, this compromise may be too difficult to put into place by the responsible party, so its reasonableness must be assessed in accordance with the actual context surrounding the request. These are the three features of reasonable
5.1.2.1 A Disadvantageous Situation
The starting point of reasonable accommodation relates to equality and non-discrimination. The request for an accommodation emerges from a disadvantageous situation.63 The person affected faces an inequal condition compared to other people. The person belongs to some minority or vulnerable group. Because of the person’s status, he or she cannot enjoy the same rights and obligations as other people. Globally, the person suffers from discrimination.
The disadvantageous situation the person is in comes from a general rule, but the rule is not itself discriminatory.64 Thus, because that discriminating situation is latent and cannot be prosecuted, one way to address it is to adapt the rule. The adaptation is not quite an exception to the general rule that creates the disadvantageous situation, but it makes it more flexible.
For instance, if a business has a general rule imposing break times for all its employees set at 15 consecutive minutes in the morning and 15 consecutive minutes in the afternoon, the rule might complicate a Muslim employee’s management of his or her prayer times. The employee would need more breaks, but for shorter amounts of time. Thanks to the reasonable accommodation process, they can ask for it.
5.1.2.2 A Dialogue
In order to favor integration and equality, mutual comprehension is important.66 Vulnerable groups suffer from discrimination mostly because they are
Dialogue is a powerful sociological tool.68 In States promoting their multiculturalist identity, such as Canada or Switzerland, dialogue also creates cohesion. The same can be translated in the business field. Promoting tolerance supposes possibilities to share one’s experience and to be listened to. In the reasonable accommodation process, it supposes that the employee requesting an accommodation and his or her superior sit down together and discuss the problem. The employee must be in a safe place and must be clear on where his or her disadvantage stands. The superior must prove he or she can lead the dialogue, and understand the difficulties encountered by her or his employee.69 This conversation lays down all the interests and constitutes the base of finding an accommodation. Usually, the employee has an idea of what can be done to help his or her situation: this may be used as a starting point. The superior will take a position on the request and eventually a compromise between the two will be found.70
Reasonable accommodation, especially through its dialogue process, aims to avoid conflict.
5.1.2.3 A (Un)reasonable Solution
Once the dialogue has been led, the two parties should have agreed on an accommodation that satisfies the querent. The employer, who is responsible for offering and applying the accommodation, is not required to implement it unless the accommodation is reasonable. Reasonableness is an adaptative
If the employer is a small business with few employees and resources, the scope of reasonableness will be narrowed. To the contrary, a multi-national business with a high amount of profits and means is subject to a broader interpretation of reasonability. In the case of shifts, for instance, a small business with only four part-time employees may not be able to ensure its operations if it adapts its ordinary scheme. That reality is likely not shared by a 100 or more full-time employees’ business.
Reasonableness creates the obligation to be flexible and fair. Reasonableness also rewards the process and the way the two parties try to find a compromise. If the superior can show that he or she offered several solutions that did not satisfy the querant, it can consider the possibility that the querant is unreasonable and decline additional deals.72 The idea is to reward integrative dialogue and efforts from both sides to find a compromise.
The solution that is considered reasonable will have to be adopted and put into practice, while the unreasonable one will be abandoned. If there is a divergence on the qualification of the accommodation, a legal case can be filed. This is a rare scenario, as most reasonable accommodations requests find a compromised solution during the dialogue stage.
Nevertheless, the jurisprudence of the Supreme Courts both in the United States and Canada was useful in the early years to shape the “reasonable” character of accommodations. The Supreme Court of Canada for instance relies on “factors” to examine reasonableness. They are: “financial cost, disruption of a collective agreement, problems of morale of other employees, [and] interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations.”73 Such (non-exhaustive) enumeration is useful for helping the parties to evaluate their compromised
To the contrary, in the United States, the development of factors has not been necessary because a standard was born with the Hardison case which has since expanded to consider the limit of reasonableness bearing: the de minimis standard.74 The standard states that if the accommodation agreed on demands more than de minimis cost to be implemented, then it is unreasonable. Thinking in terms of cost and economical involvement has strongly limited the reach of the obligation but has also allowed the development of non-economical accommodations, such as favorizing employees shifts, guaranteeing flexible break rules, or adapting rest days to religious traditions.
The reasonableness element adapts to the legal order it takes place in. In a multiculturalist and integrative society as promoted in Canada, reasonable accommodation is a diversity tool that manages to consider all people concerned. Meanwhile, in the United States, a capitalist targeted society in which one has to prove his or her value, reasonable accommodation is limited to free adaptations of the system, so that it would never seem to give any economical privilege.
Because the bare minimum depends on the domestic legal order, the scope of the obligation also depends on the philosophy the business wants to promote. As long as reasonable accommodation is not recognized as a domestic obligation, businesses can use it as an integrative tool promoting diversity among their employees and choose their own standard of reasonableness.
5.2 Some Examples of Reasonable Accommodation
5.2.1 Cloutier75 – An American Case
A young woman named Cloutier worked at a Costco gas station. She adhered to the Church of Body Modification, which sees the body as an artist’s canvas to be modified and used. So, she pierced her eyebrow. Costco forbade her from
The United States Court of Appeals for the First Circuit Court held that Costco had fulfilled its duty to accommodate and was therefore free to dismiss Cloutier.76 Indeed, the hiring of a mediator and the dialogue occurred so that Cloutier could been heard and accommodated. Moreover, the court found that the brand image argument was clearly relevant to judging the reasonableness of an accommodation. The autonomy of the employer allows it to decide what image it wants to project to the public, and it is therefore free to grant or deny exemptions according to its own dress requirements, as long as the company engages in proper dialogue to explain it to the employee.77
5.2.2 Bergevin78 – A Canadian Case
In Bergevin, teachers working in Quebec schools were subject to a collective bargaining agreement that determined the school calendar. That agreement named the Jewish Holiday Yom Kippur a working day. Three Jewish teachers were affected by this conflict and requested time off to celebrate Yom Kippur. The Personnel Commission only allowed them to take an extra day off without pay. The teachers considered the option unfair and discriminatory because other religious holidays were not affected. They therefore disagreed on the compromise to be found and argued for the compensation during their day off.
The Supreme Court of Canada determined that reasonable accommodation achieves the pursuit of the important objective of fairness in the workplace. The accommodation must be necessary for the overall development of equity.
5.2.3 Dahlab
It is important to note at the outset that Switzerland has no practice of reasonable accommodation, but is necessarily familiar with conflicts between general, abstract rules and cultural differences. Thus, it has case law in this area, and its weighing of interests resembles that of the USA and Canada. There is no application process, however, and no search for compromise. I argue that the Swiss approach represents a lack of effort in the integration and acceptance of all differences in the Swiss society that should be addressed.
A young teacher in Geneva, Dahlab, converted to Islam after her marriage. She decided to start wearing a headscarf in line with Islamic religious beliefs. The school where she worked prohibited her from covering her hair for religious reasons, and she appealed the decision. The Swiss Federal Court and the European Court of Human Rights both upheld the school’s decision. The authorities’ main argument was that a teacher has a special role in children’s lives and must be recognized as having a certain influence on pupils.81 Thus, wearing a distinctive religious symbol imposes a biased vision on pupils, and can create “confrontations” that must be avoided. A similar case arose in the United States, and the interest of teachers maintaining a neutral appearance again led to the denial of a Sikh woman’s accommodation request to wear a turban.82
5.3 Reasonable Accommodation and the ungps
Reasonable accommodation is not formally part of the ungps. The word “accommodation” is never used in the principles, but the interpretative guide notes that some UN Instruments developed a special attention for
This is encompassed in the “additional human rights standards” that may be relevant for implementing the ungps. The obligation of reasonable accommodation is not fully developed in the UN system, and a “true” obligation is limited to people with disabilities (Art. 2, icrpd). For the other vulnerable groups, an “accommodation” is presented as a temporary measure that is needed to ensure equality.84
However, this does not mean that reasonable accommodation would not be a welcomed step for States and businesses in their implementation of the principles. On the contrary, the principles ask for a special attention for vulnerable groups, a non-discriminatory implementation of the guide, and a global promotion of equality. Reasonable accommodation processes offer a platform for vulnerable people needing attention to ask for an adaptation that grants them the same opportunities as the majority, and to reach a global equality in the business field. It seems that a process of reasonable accommodation fits the standard set by the guiding principles and would promote its values.
5.4 The Integration of Minorities in the Workplace through Reasonable Accommodation
By now, one should recognize the global goal of reasonable accommodation to promote and integrate minorities into the society. As raised earlier, the workplace is a core element of anyone’s integration into society.85 This is particularly true for vulnerable groups that need special attention. Integrating vulnerable people means being aware of their special features and differences. In the workplace, this implies being ready to adapt.86
Nowadays a lot of multinational businesses use diversity and equality as promoters of their workplace. Some refer to “reasonable accommodation” for disabled people (because the UN Covenant for People with Disabilities specifically asks for reasonable accommodations).87 However, most do not appear to have an accommodation process that covers all minorities or vulnerable groups. The idea here is to prove that their policies are fully compatible with reasonable accommodation and that they are ready to implement it according to their public and policy statements.
For instance, Google has implemented a special accommodation process for disabled people and presents itself as an “equal opportunity workplace” and “an affirmative action employer.”88 Since it recognizes reasonable accommodation for disabilities, it should not be a problem to extend the process to other discrimination criteria.
h&m also sees itself as an “inclusive workplace,” promoting diversity and equality.89 It promotes dialogue with stakeholders to improve its performance as a business and as social actor.90 Apparently, then, h&m is ready to actively promote diversity among its employees. Thus, reasonable accommodation should be easy to implement.
Reasonable accommodation appears to be the most effective in the workplace, because it involves two (in most cases) private parties who must trust each other and try their best to resolve the situation. Dialogue and compromise make sense when two parties have strong private interests.
As more multinational businesses with broad ranges of employees from different social backgrounds are acknowledging the diversity and equality problems vulnerable groups can face, it is rational to think that they would be keen to implement a unique process to address those situations. Reasonable accommodations are often used in the disability field but as shown, they are adaptable to other disadvantageous situations, notably for ethnic and religious minorities.92 Thus, for those businesses that know disability accommodations, a general process is not a complicated step to take.
Reasonable accommodation represents an easy process to allow people to request an adaptation to a general rule that promotes the integration of diversity and vulnerable groups in the workplace. For businesses looking for a guaranteed way to promote equality among their employees, reasonable accommodation should be seriously considered. This is also true for States and businesses which want to comply with the ungps.
6
6.1 Foreword
It should be noted here that the incorporation of such an obligation into a domestic legal order presupposes a very thorough analysis. Although this chapter does not address such an analysis here, it is beneficial to summarize the main steps necessary to incorporate reasonable accommodation into Swiss law.
Reasonable accommodation is a process, which means it can be integrated into any legal system, while allowing the authorities in the countries concerned to give it its own identity. This is the case, for example, in the USA and Canada, both of which have incorporated reasonable accommodation into their legal systems but have two opposing visions of the obligation.
The proposed incorporation of reasonable accommodation into Swiss law is therefore one that reflects the current sensitivities of Swiss jurisprudence and takes into account the specificities of Swiss society. It is not a panacea solution designed to enable integration anywhere, anytime, but it would contribute to a better and more inclusive society.
6.2 A Comparative Analysis
First and foremost, before a new obligation can be adopted, it must be understood. To incorporate reasonable accommodation into Swiss law, we need to conduct a global comparative analysis of the cases likely to be accommodated in the USA, Canada and Switzerland.
6.2.1
6.2.1.1 In the United States
The Fifth94 and Fourteenth95 Amendments to the United States Constitution form the basis for the prohibition of discrimination in the American system. Both direct and indirect discrimination are prohibited.
In practice, however, these notions are inconsistent.96 The subjective intent of the discriminator, which is very difficult to prove, often remains the main issue in cases. The dividing line between direct and indirect discrimination remains blurred, so the Supreme Court urges lower courts to be cautious.97 Equality, however, plays a central role in the Supreme Court caselaw. In fact, this guarantee must be considered as an integral part of all the others and must be given a special place in the authorities’ analysis.
6.2.1.2 In Canada
In the application of Article 15 of the Canadian Charter of Rights and Freedoms that protects equality,98 the Canadian Supreme Court recognizes three types
Nevertheless, as the critical scholars point out, an approach based exclusively on preconceived ideas precludes the admission of complaints based on disadvantages arising from a distinction not based on a stereotype.101 For example, the Law case102 might seem unsatisfactory in this respect, as the appellant did indeed suffer a disadvantage due to her age. Since the denial of survivors’ benefits does not violate her human dignity or perpetuate a stereotype based on age, she must accept that the law treats her unfavorably to combat the disadvantages of older people in her situation.
6.2.1.3 In Switzerland
Switzerland, through the Federal Court and the application of Article 8 para. 2 of the Swiss Constitutional Act (sca),103 recognizes only direct and indirect discrimination.104 The analysis of a discrimination claim is based on a balance of interests. Under Swiss law, when comparing interests, the individual must demonstrate a disadvantage that cannot be justified by overriding public the interest. The public authority in question must put forward strong arguments.
6.2.2 The Political Envision of Diversity
6.2.2.1 In the United States
Like Canada, American society is marked by its colonial past and is accustomed to the presence of minorities. The mix of varied national and/or ethnic origins, including both natives and immigrants from the massive influx at the beginning of the 20th century, established a pluralism intrinsic to American society.106 As early as 1908, the term “melting pot” was coined to signify that the customs of the various immigrant groups would be lost over the years, melting into a larger, common culture. The idea being that this would eventually mix all the influx cultures into a single “American culture.”
The concept of the Melting Pot was weakened by the Civil Rights Movement of the 1960s, which questioned a policy that focused too much on social assimilation. Part of American society then moved towards an alternative vision: the American Mosaic, which seeks to highlight the unique cultural heritages of racial and ethnic minorities and help them preserve their ways of life and languages.
As a result, the United States are still seen as having a rather assimilationist bent, remaining close to the Melting Pot rooted in habit. Nevertheless, there
6.2.2.2 In Canada
Canada’s history is strongly marked by resistance to assimilation. Indeed, multiculturalism represents a response to the difficulties encountered by Canadian authorities in integrating immigrants into mainstream Canadian institutions. The difficulty prompted a redefinition of the notion of integration.111 Today, Canada must come to terms with the diversity resulting from yesterday’s colonial movements. In 1971, a so-called multiculturalist policy was put in place to reconcile a fractured Canada. It was later incorporated into the Canadian Charter of Rights and Freedoms (art. 27), an integral part of the Canadian Constitution of 1982, before becoming the subject of the Multiculturalism Act of 1988.
Canada’s policy is to integrate, by accommodation rather than assimilation, all the cultures that make up modern Canadian society.113 Nevertheless, it must be remembered that a social tension between the majority “us” and the minority “them” underlies these issues. Some authors fear that multiculturalism conveys fixed cultures, with impermeable and rigid boundaries, while others believe that this tension leads to a constructive dialogue that makes it possible to tame differences.114
Proof of these different conceptions can be found in the French-influenced province of Quebec, which is currently seeking to return to a strict policy of secularism. Its aim is not necessarily incompatible with multiculturalism but is more in line with assimilationist ideals. Law 21, known as the “Loi sur laïcité de l’État,”115 prohibits the wearing of religious symbols by public officials, without exception. Such a law is in direct conflict with the multiculturalist policy, as well as with several decisions of the Supreme Court of Canada, notably
6.2.2.3 In Switzerland
Like the United States and Canada, Switzerland is a country marked by cultural diversity.116 Swiss authorities use the notion of “integration” to refer to the plurality of origins, and in particular immigrants. This concept, which is difficult to define legally, has taken on a fundamental importance in the approach to managing the influx of diversity. Nevertheless, as far as “Swiss” minorities are concerned, the model of cultural diversity and mutual respect, especially where language communities are concerned, is regarded as an example of multiculturalism.117 For other “new” minorities, especially religious and culturally different ones, there is still a reluctance to include them in society. Indeed, the “Strangers and integration Law” establishes the principle that immigrants must ensure their own integration and be sure to make all efforts to do so.118
Switzerland represents a unique model of multiculturalism and assimilationism and leans towards policies that may fall into either category, depending on the minority group the State is concerned with. A strong sense of belonging to a Swiss culture justifies minorities with Swiss nationality being given greater protection and promotion than “new” minorities present by way of immigration. The new minorities struggle to gain recognition in Switzerland and must integrate to have any chance of retaining their place in the country.
6.2.3 The Workplace as a Special Matter in Switzerland
Unlike the U.S. and Canada, Switzerland has no legal obligation to prohibit discrimination in the workplace. The way in which employees are treated is a matter of employer autonomy to organize his or her activities. The only limit
Thus, transversability is an important concept in the Swiss context. Indeed, the question that arises at the international level has an important echo for Swiss labor law, and it would be important to recognize that the workplace plays an important role in the integration of minorities and should therefore be subject, at least to some extent, to human rights protections.
6.2.3.1 The Swiss Principle of Private Autonomy
Under Swiss law, the autonomy of the parties is the primary principle governing employment relationships.119 Article 328 of the Swiss Code of Obligations (sco),120 however, sets out the employer’s obligations to protect the personality of the individuals it employs during the employment relationship.121 It imposes a duty of abstention on the employing party, in the sense that it must not intervene against the personality of the employed party, but also imposes a duty of action. Thus, it must take the necessary measures to prevent a breach to the employee’s personality.122
Although the prohibition against discrimination is not directly binding on the employer, the Federal Court determined that article 328 sco can be invoked in conjunction with article 8 al. 2 of the Constitutional Act when an employer’s action is made in bad faith or in a way that degrades the personality of the employee.123 These requirements are difficult to meet, so much so
6.2.3.2 A Reminder – The Call for Transversability
As noted above, the Committees in charge of the two major Human Rights Covenants125 claim a common vision. Social and Civil rights should be respected and protected adequately.126 The claim for transversability requires a lot of political work, and the development of global actions toward a graduate private liability for human rights’ impact.127
The ungps directly involve businesses in the obligation to respect human rights.128 Under the ungp, businesses should pay special attention to vulnerable groups to avoid participating in disadvantageous situations.129 By doing so, businesses recognize the existence of structural behaviors in which human rights could be infringed. The ungps ask for a global and transversal answer, so that businesses can be held responsible for their private discriminatory activities. In that respect, the ungps encourage transversability and play an important role in the promotion of the modern vision of human rights.
Thus, Switzerland and other countries that do not yet recognize the role of private parties, particularly employers, in protecting against discrimination, must reconsider their position about the ungps. In order to recognize these principles and apply them correctly, businesses need to be encouraged to adopt policies that take discrimination into account and offer solutions. It is in this logic that reasonable accommodation should be proposed for Switzerland and its legal system, and for all businesses wishing to promote an egalitarian workplace.
6.3
To propose the incorporation of reasonable accommodation into a legal order, we must first ensure that domestic practice is compatible with the principle of the obligation. To do this, we need to look at similarities in the two systems. Examining the rulings of American, Canadian, and Swiss case law in detail is outside the scope of this chapter,130 but it is possible to schematize the main elements of the major American, Canadian, and Swiss jurisprudence here.
The aim here is to use a summary table (Table 6.1) to present the various interests at stake when a planning application is made. In this way, I show which arguments win the case for accommodation and which do not. This table serves only as a snapshot of the various interests involved at a given point in time and their tendency to be taken into account by the various States in granting a workplace reasonable accommodation.131 Note that italics represent the interests that tip the balance in favor of unreasonable accommodation.
Comparative winning/losing arguments in reasonable accommodation cases
United States |
Canada |
Switzerlanda |
|---|---|---|
– Cost – Employer’s image – Neutrality – Employer’s autonomy – Dialogue process |
– Security – Cost – Dialogue process – Equity among employees |
– Neutrality – Equity among employees |
This table shows differences and similarities. Canada is very generous to accommodation requests unless a security requirement complicates the implementation of an accommodation. In contrast, the United States is more restrictive, granting the reasonableness only when the process itself is not applied correctly. As already noted, Switzerland is, for its part, reluctant
6.4. … to Constructing a New Obligation – A Constitutional Change of Interpretation
The guarantees of equality are formally the same in the various states examined, but the material application of these guarantees does not seem to go as far. Although the Swiss authorities have recognized, in some cases, the need to address the causes and effects of discrimination, they have not yet developed the reflex to do so systematically. Indeed, all the cases presented in this chapter rely exclusively on the freedom of religion and do not encompass considerations of equal treatment or discrimination.
Switzerland has much to learn from both the United States and Canada, which have long been implementing measures to counter the practical effects of discrimination. It seems that the Swiss authorities can draw on their current practices to propose reasonable accommodations to redress certain inequalities stemming from the socio-historical context.132
Indeed, the High Court recognized that discrimination implies that “a person is legally treated differently, solely because he belongs to a historically determined group or in contemporary social reality, set aside or considered to be of lesser value.”133 It is arguable that reasonable accommodation would be welcome in such a logic, since it allows parties to take into account the current society trends that create a disadvantage for the person affected. Based on these elements, the Federal Court would have the opportunity to develop a coherent and comprehensive practice for the prohibition of discrimination, and for the workplace.
Although the process does not have the same political importance in the U.S. and Canada, the steps of reasonable accommodation are of particular importance for their overall meaning: they ensure that requests are treated with respect and equality.134 In Switzerland, the incorporation of these steps
The incorporation of reasonable accommodation in the Federal Court jurisprudence would thus make it possible to consolidate a desire for equality and diversity in the Swiss society in a unique and consistent way, regardless of the field. Moreover, the reasonableness of the accommodation could be adapted to Swiss standards and sensitivities. In particular, the appearance of neutrality on the part of the authorities, which seems paramount, could constitute an overriding interest in Switzerland and retain an important place in the weighing of interests in connection with reasonable accommodation, without preventing the development of this notion.136
It would also be welcome to revalorize the role of parties themselves in the legal order. In particular, this could be achieved by adopting a process that allows discussion and encourages compromise before having to face up to the judicial authorities. Such a reflex would underpin the importance of tolerance between all and reinforce the acceptance of differences through equality.
Finally, it should be noted that Canada introduced the notion of reasonable accommodation because of the lack of satisfactory legislative support for dealing with cases of inequality in the employment field. Even though it belongs to a civil law tradition, the Federal Court, as a constitutional court, has the power to derive the same duty as that deriving from Article 15 of the Canadian Charter from Article 8 al. 2 sca.
6.5
6.5.1 The Pitfall: The Quebec Crisis of Accommodations
One should first note that Quebec is the only French-influenced province in Canada. It stands out not only for its language, but also for certain political characteristics, such as its attachment to secularism.
The crisis of accommodations began in 2006, following the Multani and Amselem rulings.137 The 2004 Amselem ruling concerned Orthodox Jewish plaintiffs who wished to install individual succahs on their balconies to celebrate Sukkot. Land-use rules and condominium bylaws prohibited such constructions, but the Court considered that, for a specific period, they should be allowed. An accommodation had been proposed by the accommodating party, namely, to install a large succah instead of having three individual ones. But the Court rejected the plan, because it found that the accommodation sought by the plaintiffs was not unreasonable and therefore did not require a compromise. This first ruling was heavily criticized by the Quebec media; they felt the Supreme Court was imposing diversity and flexibility that the province did not wish to have. A few years later, the Multani decision again sparked debate in the Quebec media. Multani concerns a 13-year-old teenager’s request to wear a dagger as a religious symbol at school. The summary of the case explains the strong social reaction it provoked.
An “identity crisis” exists in this context, according to those who have studied the issue. So, in 2006, the State of Quebec mandated a Commission (called the Bouchard-Taylor Commission after its two presidents) with the goal of understanding the causes of the crisis and to propose practical solutions to improve understanding of reasonable accommodation in Quebec. Their report was published in 2008.138 One of the report’s conclusions was that Quebec rejected the notion of multiculturalism, feeling that its “own identity” was being lost. The report therefore proposes the term “interculturalism.” The major difference with multiculturalism, which Canada promotes, is not abolishing differences, but instead seeking a common identity.139
Legally, the impact of such thinking is to impose stricter neutral standards on anyone with a visible characteristic, so that he or she can actively participate in the creation of the Quebec identity. As a result of this “own identity,”
6.5.2 The Situation in Switzerland
Switzerland’s international character counterbalances the more conservative popular initiatives of recent years,141 but also confirms the ambivalence and ambiguity that exist in Switzerland’s relationship to diversity and multiculturalism.142 The situation is complex, but not set in stone: Switzerland adopts a multiculturalist rather than an assimilationist policy. Reasonable accommodation would appear to be a tool that bridges the gap between some difficulties in accepting diversity and promoting equality. It seems that the compromise on which it is based would correspond to Switzerland and its sensibilities of dialogue and neutrality.
On the face of it, there is nothing to prevent reasonable accommodation from being successfully integrated into Swiss society. The difficulties encountered in Quebec should not be ignored and could serve as a model for the integration of the obligation in Switzerland. Transparency about the issues at stake in the obligation, the reasons for its introduction and the objectives pursued remain the best way to promote real equality and reasonable accommodation in Switzerland in the long term.143
The margin of appreciation that the Federal Court would have in its interpretation of “reasonable” and the implementation of this obligation must also be recalled. It is only in this way that the flexibility that characterizes the obligation unfolds its full potential; accommodation is individual and concrete and must therefore always be placed in the context of, and adapted to, the
7 Reasonable Accommodation as a Business Policy
It should be pointed out here that reasonable accommodation is first and foremost a process. It can therefore be incorporated into management fairly easily and does not need to be based on legislation. Admittedly, it would be simpler if all employers were required by law to implement reasonable accommodation. However, it is conceivable that a business could take the initiative itself to promote diversity and be open to the differences of its employees.
In this way, it could create a unique process of request – dialogue – compromise, enabling the parties to come to an agreement and work together to find the best solution. In such a case, recourse to the national courts could certainly be excluded, because only a small portion of reasonable accommodation cases result in a formal legal dispute. So, often, the simple fact of an employee being able to ask for accommodation and given the opportunity to discuss his or her circumstance helps the situation. It’s a social science mechanism: dialogue and compromise foster mutual understanding and empathy.145
In any case, it’s clear that such an initiative would be welcomed by ungps and the UN in general. Promoting diversity and integration through dialogue helps to deconstruct discriminatory social structures.146 Businesses that adopt reasonable accommodation as an internal process are helping to recognize and deconstruct the social structures that create discrimination. It would also help them take vulnerable groups into account, as required by the ungps. All in all, it seems that reasonable accommodation would be a good initiative for businesses that want to participate in a better representation of diversity, and a better integration of all groups.
8
This chapter explored the notion of reasonable accommodation and argued that it was an attractive process for States and businesses wishing to strengthen diversity and improve their equality practice.
The ungps have developed a standard for paying attention to minorities and vulnerable groups in the employment field. The interpretative guide is intended to promote diversity while combating discrimination. Reasonable accommodation is an obligation that makes it possible to create a dialogue around differences and to promote individual and concrete solutions. Employers and employees can work together to find the best possible compromise.
This chapter therefore focused on the role of integration and reasonable accommodation as a means for States and businesses to fulfill their obligations to integrate and care for vulnerable groups. Setting up a process involves a specific effort, but I’ve shown that it’s relatively easy to incorporate reasonable accommodation, because it’s a flexible obligation that allows all parties concerned to be considered. By taking Switzerland as an example, the chapter showed that a State reluctant to intervene in private relations but willing to promote diversity and overall integration may implement reasonable accommodation and still give it a particular domestic interpretation. The Swiss legal order needs a legal basis for implementing an obligation such as reasonable accommodation, so the reinterpretation of the constitutional protection against discrimination has been proposed as one possible basis.
Some major groups, such as h&m, Swatch Groupe, Apple, and Google, are familiar with the reasonable accommodation procedure for people with disabilities, so it could be easy to imagine providing the same process for people from cultural minorities (religious or ethnic) and thus opening dialogue with diversity. It’s the first recognition of our differences as human beings, and a first effort towards integrating everyone into society.
This motto is borrowed from the Hard Rock Cafe franchise, which has been rated America’s best employer for diversity in 2020 by Forbes. “Hard Rock International honored by Forbes Magazine as one of America’s best employers for women in 2020,” Hard Rock Hotel, July 29, 2020,
“The Corporate Responsibility to Respect Human Rights: An Interpretive Guide,” ohchr, 2012,
“General Comment No. 28: Article 3 (The equality of rights between men and women),” Office of the United Nations High Commissioner for Human Rights (“ohchr”), paras. 2–3,
“Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies,” United Nations Human Rights Committee (“hrc”), July 29, 1994, Comment No. 18: Non-discrimination (Thirty-seventh session, 1989), 26
Id. at 26, para. 1.
Most often those “characteristics” are enlisted in legislation at a domestic level or in Covenants at an international level. Those lists regularly refer to sex, race, color, ethnic, disability, or religion as basic personal characteristics that may lead to discrimination.
“Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” hrc, May 12, 2003, General Recommendation V concerning reporting by States parties (art. 7 of the Convention), 197,
“General comment No. 6 (2018) on equality and non-discrimination,” Committee on the Rights of Persons with Disabilities (“crpd”), April 26, 2018, para. 10,
Lauren B. Gates, “Workplace Accommodation as a Social Process,” Journal of Occupational Rehabilitation 10 (March 2000): 86–98.
Gillian Coote Martin, “The Effects of Cultural Diversity In The Workplace,” Journal of Diversity Management 9, no. 2 (November 2014): 89.
Id. at 89–98.
Id. at 90.
Id.
Friedrich Gabel et al., “Global Assessment Report on Disaster Risk Reduction 2022 – Bridging the Gap between Vulnerable Groups and Vulnerable Situations: Towards an Integrative Perspective on Vulnerability for Disaster Risk Reduction,” United Nations Office for Disaster Risk Reduction (“undrr”), 2022, 15, 17,
“Protecting Minority Rights – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation,” ohchr, December 6, 2022, 137,
Id. at 184–185, 187.
“Universal Declaration of Human Rights,” United Nations, December 10, 1948,
“The International Covenant on Civil and Political Rights,” ohchr, December 16, 1966,
The “International Covenant on Economic, Social and Cultural Rights,” ohchr, December 16, 1966,
In order to offer a global vision of equality, and integration of minorities under the ungps, this chapter will only focus on this minimal standard. One must note however that according to States, “human rights” may cover a lot more rights and covenants and thus may set an even more protective standard.
See the two Covenants mentioned above (iccpr, supra note 22, and icescr, supra note 23) that enclosed that choice.
See iccpr, supra note 22, at Article 2, para. 1, stating that “[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”.
See icescr, supra note 23, at Article 2, para. 1, stating that “[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
“Draft general comment No. 9: The domestic application of the Covenant,” United Nations Economic and Social Council (“esc”), December 3, 1998, paras. 1–3,
Id. at para. 10.
“cescr General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant),” cescr, December 14, 1990, para. 1,
Id. at para. 11.
“Guiding Principles on Business and Human Rights,” ohchr, 2011, 1,
Id: “[t]hese Guiding Principles should be implemented in a non-discriminatory manner, with particular attention to the rights and needs of, as well as the challenges faced by, individuals from groups or populations that may be at heightened risk of becoming vulnerable or marginalized, and with due regard to the different risks that may be faced by women and men.”
Nicola Jägers, “UN Guiding Principles at 10: Permeating Narratives or Yet Another Silo?,” Business and Human Rights Journal 6, no. 2 (June 2021): 202; John H. Knox, “The Ruggie Rules: Applying Human Rights Law to Corporations,” Wake Forest Univ. Legal Studies Paper no. 1916664 (August 16, 2011), 200.
“Human rights and transnational corporations and other business enterprises,” ohchr, July 6, 2011, para. 2,
See the definition offered by the UN Office for Disaster Risk Reduction. It is the only UN body that dares give a definition of this highly debated concept: “Vulnerability,” undrr, accessed May 21, 2024,
Id. at 4, 13.
Interpretative Guide, supra note 2, at 11, question 4: What additional human rights standards may be relevant?
Id. at 37, question 35: What is meant by “human rights risks” and whose human rights are relevant?
Id.
Id. at 4, 17.
Interpretative Guide, supra note 2, at 10, question 3: How are human rights relevant to businesses?
Manaf Raewf and Yazen Nafi Mahmood, “The Cultural Diversity in the Workplace,” Cihan University-Erbil Journal of Humanities and Social Sciences (March 2021): 3.
Trans World Airlines, Inc. v. Hardison et al., 432 U.S. 63 (1977).
“Section 12: Religious discrimination,” Equal Employment Opportunity Commission (“eeoc”), July 15, 2021,
Id. at footnote 221: “[n]otwithstanding the different legal standards for determining when a failure to accommodate poses an undue hardship under Title vii and the ada, see supra notes 5 and 6, courts have endorsed a cooperative information-sharing process between employer and employee”.
Id. at 75.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union [1999] 3 scr 3, 35 (“Meiorin”).
Law v. Canada (Minister of Employment and Immigration) [1999] 1 scr 497, 62–75.
Id.
Hardison, supra note 51, at 91. Jeff B. Cromwell, “Cultural Discrimination: The Reasonable Accommodation of Religion in the Workplace,” Employee Responsibilities and Rights Journal 10 (June 1997): 158.
Shola Agboola, “The Dilemma of ‘Reasonable Accommodation’ in Canada’s Multiculturalism: State’s Decision to Ban the Niquab at Citizenship Oath Ceremony,” in e-cardenos ces, A manipulacao xenofoba e politica dos direitos das mulheres 16 (2012): 104.
Id.
If the rule was discriminatory in itself, then the ordinary canals of discrimination would need to be privileged.
Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), 69: “[t]he legislative history of § 701(j), as we noted in Hardison, supra, at 432 U.S. 74–75, and n. 9, is of little help in defining the employer’s accommodation obligation. To the extent it provides any indication of congressional intent, however, we think that the history supports our conclusion. Senator Randolph, the sponsor of the amendment that became § 701(j), expressed his hope that accommodation would be made with ‘flexibility’ and ‘a desire to achieve an adjustment’”.
Nora Götzmann, Frank Vanclay, and Frank Seier, “Social and human rights impact assessments: what can they learn from each other?,” Impact Assessment and Project Appraisal 34, no. 1 (2016): 22.
Kevin Banks, “Reasonable Accommodation as Equal Opportunity in Canadian Employment Law,” Reasonable Accommodation in the Modern Workplace: Potential and Limits of the Integrative Logics of Labour Law, eds. Roger Blanpain and Frank Hendrickx (Bedfordshire: Kluwer Wolters, 2016), 31.
Philbrook, supra note 65, at 68: “[w]e find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms, the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it ‘demonstrates that [it] is unable to reasonably accommodate (…) an employee’s (…) religious observance or practice without undue hardship on the conduct of the employer’s business’”.
Central Alberta Dairy Pool v Alberta (Human Rights Commission) [1990] 2 scr 489, 521.
Hardison, supra note 51, at 65: “abandonment of the seniority system, to require twa to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that twa should incur certain costs in order to give Hardison Saturdays off, the Court of Appeals would, in effect, require twa to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.”
Cloutier v Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004).
Id. at 39: “[a]lthough the employer is required under Title vii to accommodate an employee’s religious beliefs, the employee has a duty to cooperate with the employer’s good faith efforts to accommodate.”
It would be unreasonable to refuse to hire someone because he or she may ask for an accommodation to the dress requirements. This was the facts of the ruling Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), where Abercrombie refused to hire a young Muslim woman wearing a headscarf, although she succeeded at all stages of the hiring process. The refusal was found to be discriminatory because the brand wanted to avoid the reasonable accommodation process that probably would have been put into place.
Commission scolaire régionale de Chambly v. Bergevin [1994] 2 scr 525.
Id. at 549.
The Swiss Federal Court’s decision in 123 i 296 has been confirmed by the European Court of Human Rights (“ECtHR”) in a decision of non-entry, Dahlab v. Switzerland (dec.) -42393 / 98, February 15, 2001.
Swiss Federal Court Decision 123 v 269, para. 4c).
Cooper v eugene sch. dist. no. 4J, 301 Or. 358 (1986).
Interpretative Guide, supra note 2, at 30–31, question 37. How should human rights impact be assessed?
“Temporary measures” are often related to the equality between men and women. Accommodations in this area could be temporary in that sense that they could help promoting mutual comprehension and a certain sensibility to structural disadvantages suffered by women, in order to redress them. See for instance “General recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary measures,” Committee on the Elimination of Discrimination against Women (“cedaw”), paras. 18–24,
Id. at 89.
It is true that reasonable accommodation is internationally present through the International Covenant for the Rights of Persons with Disabilities (Article 2 of the Convention on the Rights of Persons with Disabilities, which states that the denial of reasonable accommodation constitutes a discrimination. “Convention on the Rights of Persons with Disabilities,” ohchr, December 12, 2006, Article 2,
See “Accommodations at Google,” Google Careers, accessed May 22, 2024,
See “Inclusion and diversity,” h&m Group, accessed May 22, 2024,
“Stakeholder engagement,” h&m Group, accessed May 22, 2024,
See “Social: Employees, Diversity and Equal Opportunities,” Swatch Group, accessed May 22, 2024,
For instance, the Hardison ruling, supra note 51, which was the first to ever recognized this obligation in the US legal order and which lays the foundations to its development in the US, as well as in Canada. One must note here that nevertheless this obligation is fitted for religious discrimination, it also worth to be developed for other criteria, such as age (see the Law ruling, supra note 57), or sex (see the Meiorin ruling, supra note 56) when the disadvantage suffered pursues a systematic stigma for the person concerned.
For those interested, a comparative analysis may be found in the following book (in French): Morgane Ventura, L’accommodement raisonnable comme nouvel outil dans la lutte contre la discrimination: Etude de droit comparé (Etats-Unis, Canada, Suisse) (Geneva: Schulthess, 2023).
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” See U. S. Const. amend. v.
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (…) Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” See U. S. Const. amend. xiv.
Pamela L Perry, “Two Faces of Disparate Impact Discrimination,” Fordham Law Review 59 (1991): 594; George Rutherglen, “Disparate Impact, Discrimination, and the Essentially Contested Concept of Equality,” Fordham Law Review 75 (2006): 2337.
For example, if a company has an internal rule against rehiring a person previously dismissed for a certain reason, a former employee who wishes to be rehired despite this rule cannot claim indirect discrimination, after having initiated proceedings for direct discrimination. See Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), 52: “[b]oth disparate-treatment and disparate-impact claims are cognizable (…) Because the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes (…), courts must be careful to distinguish between these theories.”
Canadian Charter of Rights and Freedoms, s 15, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11: “(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Systemic discrimination is similar to structural discrimination, but in accordance with the UN system, the rest of this chapter speaks rather of structural than systemic discrimination. See Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (Oxford University Press, 2016), 117.
R v Kapp [2008] 2 scr 483; Jennifer Koshan and Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter,” University of New Brunswick Law Journal 64 (2013): 66.
Diana Majury, “Equality and Discrimination According to the Supreme Court of Canada,” Canadian Justice, Women and Law 4 (1990): 416.
Law, supra note 57, at 13. The case concerns the denial of widow rent for a young woman who did not was old enough to pretend to a widow rent.
Federal Constitution of 18 April 1999 of the Swiss Confederation, sr 101, as 1999 2556 Article 8, para. 2.
See Vincent Martenet, “Article 8,” in Constitution fédérale: Commentaire romand, eds. Vincent Martenet and Jacques Dubey (Basel: Helbing Lichtenhahn Verlag, 2021).
Bernard Waldmann, “Artikel 8,” in Bundesverfassung: Basler Kommentar, eds. Bernard Waldmann, Maria E. Besler, and Astrid Epiney (Basel: Helbing Lichtenhahn Verlag, 2015).
Diana Owen, “American Identity, Citizenship, and Multiculturalism,” presented at the German-American Conference, Freiburg, Germany, September 11–16, 2005,
See id.
Christopher Wolsko, Bernadette Park, and Charles M. Judd, “Considering the Tower of Babel: Correlates of Assimilation and Multiculturalism among Ethnic Minority and Majority Groups in the United States,” Social Justice Research 19, no. 3 (2006): 278.
See the analysis made by Wolsko, Park, and Judd, supra note 109, on social perceptions of assimilationism and multiculturalism.
Shibao Guo and Yan Guo, “Multicultualism, Ethnicity and Minority Rights: The Complexity and Paradox of Ethnic Organizations in Canada,” Canadian Ethnic Studies 43, no. 1–2 (2011): 62.
See Canadian Charter of Rights and Freedoms, supra note 99, “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”
Amelie Barras, Jennifer Selby, Lori G. Beamann, “Rethinking Canadian Discourses of ‘Reasonable accommodation’,” Social Inclusion 6, no. 2 (2018): 167.
Quebec’s official language is French. In English, the Act is named the “Laicity Act.”
Werner Haug, “Migrations et relations interculturelles en Suisse,” Revue européenne des migrations internationales 40, no. 1 (2004): 105.
Will Kymlicka, “Multicultural citizenship within multination states,” Ethnicities 11, no. 3 (June 2011): 289.
Federal Act on Foreign Nationals and Integration (Foreign nationals and Integration Act, fnia) of 16 December 2005 (Status as of 15 October 2023),, sr 142.20, as 2007 5437, Article 4. See especially paras. 2–4: “(2) Integration should enable foreign nationals who are lawfully resident in Switzerland for the longer term to participate in the economic, social and cultural life of the society. (3) Integration requires willingness on the part of the foreign nationals and openness on the part of the Swiss population. (4) Foreign nationals are required to familiarise themselves with the social conditions and way of life in Switzerland and in particular to learn a national language.”
Bernhard Waldmann, Das Diskriminierungsverbot von Art. 8 Abs. 2 bv als besonderer Gleichheitssatz: Unter besonderer Berücksichtigung der völkerrechtlichen Diskriminierungsverbote einerseits und der Rechtslage in den USA, in Deutschland, Frankreich sowie im europäischen Gemeinschaftsrecht anderseits (Bern: Stämpfli, 2003), 402.
Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) of 30 March 1911 (Status as of 1 January 2024), sr 200, as 27 317, Article 328 (“sco”).
Id.: “[w]ithin the employment relationship, the employer must acknowledge and safeguard the employee’s personality rights, have due regard for his health and ensure that proper moral standards are maintained. In particular, he must ensure that employees are not sexually harassed and that any victim of sexual harassment suffers no further adverse consequences.”
See Id. at Article 328, para. 2: “[i]n order to safeguard the personal safety, health and integrity of his employees he must take all measures that are shown by experience to be necessary, that are feasible using the latest technology and that are appropriate to the particular circumstances of the workplace or the household, provided such measures may reasonably be expected of him in the light of each specific employment relationship and the nature of the work.” It is, however, interpreted very restrictively.
See the Swiss Federal Court’s decision 129 iii 276, para. 4.4.
The one federal case evoked earlier, Dahlab, supra note 80, and the two cantonal cases in that manner are based on religious freedom only and do not invoke discrimination.
General Comment No. 3, supra note 30, at para. 1, and General Comment No. 31, supra note 30, at para. 14.
General Comment No. 31, supra note 30, at para. 13 and General Comment no. 3, supra note 30, at para. 8.
Id. at 1: “[t]hese Guiding Principles should be implemented in a non-discriminatory manner, with particular attention to the rights and needs of, as well as the challenges faced by, individuals from groups or populations that may be at heightened risk of becoming vulnerable or marginalized, and with due regard to the different risks that may be faced by women and men.”
Swiss case law is very limited and is virtually non-existent on these issues in the field of employment, since the autonomy of the parties, and in particular that of the employer, is very important in Swiss law. On top of this, the tendency not to recognize any transversability in Swiss law prevents claims based on fundamental rights in such cases.
See for instance the Swiss Federal Court’s decision 142 i 49, paras. 8, 9.1, and 9.4.
See the Swiss Federal Court’s decision 143 i 129, 2.3.1.
Banks, “Reasonable Accommodation,” supra note 71, at 31 and Lisa Waddington and Aart Hendricks, “The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination,” International Journal of Comparative Labour Law and Industrial Relations 18, no. 4 (2002): 409.
This may seem strange for common law states, but Swiss practice and indeed many civil law states are rather rooted in a libertarian vision of rights, not an egalitarian one. Thus, equality has gradually lost its place as a central right and become a general principle, although it has never been perfectly achieved.
Both Swiss Federal Court’s decisions on that question raises the issue of neutrality. Compare 142 i 49, supra note 136, and 123 i 296, supra note 80.
Multani v. Commission scolaire Marguerite-Bourgeoys [2006] 1 scr 256 and Syndicat Northcrest v. Amselem [2004] 2 scr 551.
Gerard Bouchard and Charles Taylor, Fonder l’avenir : le temps de la conciliation : rapport (Québec: Commission de consultation sur les pratiques d’accommodation relié aux différence culturelles, 2008).
Id. at 116 and 214.
Id. at 146.
Among which, examples include the prohibition of constructing Minarets (but not other religious edifices) or the automatic expulsion of any foreigners committing a crime in Switzerland. “Crime” here is to be understood broadly and the abuse of social aid may constitute a crime according to this initiative.
It would be complicated to explain in detail the relationship between Switzerland and diversity. Broadly speaking, Switzerland is rather welcoming and benevolent towards the “old minorities” such as Irish Travellers and linguistic minorities that make up its population. On the other hand, waves of immigration from “new minorities” such as the Muslim population are finding it very difficult to integrate in Switzerland.
In any case, doctrine would favor a revision of Article 8 to restore equality to its rightful place and enable it to deploy better protection. See Adriano Previtali, “Art. 8a, Droit à l’inclusion,” in Révision imaginaire de la Constitution fédérale : mélanges en hommage au prof. Luzius Mader, eds. Sophie de Weerts et al. (Basel: Helbing Lichtenhahn Verlag, 2018), 51–53, and Martenet, “Article 8,” supra note 105.
Antti Korkeakivi, “The Role of Dialogue in the Monitoring Process of the Framework Convention,” in Minorities, their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities, eds. Tove H. Malloy and Ugo Caruso Ugo (Leiden: Martinus Nijhoff, 2013), 81–83.
Id.; Kyriaki Topidi, “The Normative Dialogue between Religion and Law as a Cultural Endeavour: A Plea for Complexity and Context, in Religion as Empowerment: Global Legal Perspectives”, eds. Kyriaki Topidi and Lauren Fielder (New York: Routledge, 2016), 309.
See supra notes 6 and 7.