Liberta' di religione sul posto di lavoro: l'attuale stato dell´arte
Alberto Pizzoferrato, Professore ordinario di diritto del lavoro nell’Università di Bologna
L’Autore esamina i principali arresti giurisprudenziali, sia interni, sia europei ed internazionali, in materia di libertà religiosa, individuando una tendenziale convergenza di approccio fondata sulla valorizzazione del “reasonable accommodation test”, che andrebbe sperimentato e declinato nel contesto aziendale attraverso la contrattazione aziendale.
The Author examines domestic, european and international jurisprudence on freedom of religion in the workplace. Two main findings have been reached: there is a trend towards uniform solutions based on the reasonable accommodation test and this method of solving conflicts should be implemented by company collective agreements or by preventive, unilateral, policies.
Keywords: freedom of religion – indirect discrimination – legitimate aim – proportionate measures – reasonable accommodation test.
Economic globalization, new technologies that cancel physical distances and borders, markets expansion due to productive specialization increase, have determined a revolution not only in multinational companies’ human resources management, but also in that of medium-sized internationalized enterprises. There is an urgent need to mingle people of different cultural traditions and political heritage to create a single workers community that make positive impacts inside and outside the company. To do this, and to be competitive in all regional markets covered by a company, what has been considered the most performative tool is having a neutrality code of conduct with respect to religious beliefs in order to not offend customers’ sensitivity. The business interest of setting aside religious faith should be compared to the individual freedom of religion, also in the public dimension of exterior signs manifestation. Opposite interests at stake should be balanced: the company freedom of exercising the enterprise on one hand, and the individual freedom to manifest his / her convictions, also on a religious ground, on the other. Do we have any rules or precepts that could orient this balance on a practical basis? Before answering (or trying to answer) this question, we have to pose three preliminary remarks: i) usually, because of the above mentioned unitarian approach to HR management, the enterprise dress or behaviour codes are set up on a global scale. They [continua ..]
Let me briefly refer to a couple of well known jurisprudencial precedents. The first one is the Achbita case. Samira Achbita, a Muslim, was employed as a receptionist by G4S, a private undertaking which provides, inter alia, reception services for customers in both the public and private sectors. At the time of Ms. Achbita’s recruitment, there was an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. On the 12th of May, 2006, after a period of absence from work due to sickness, Ms. Achbita notified her employer that she would be returning to work on the 15th of May, 2006, and that she would in the future be wearing her Islamic headscarf. On the 29th of May 2006, the G4S works council approved an amendment to the workplace regulations, which came into force on 13 June 2006. These provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of [continua ..]
The ECHR jurisprudence is basically consistent with ECJ decisions, taking into account the similarity of the normative reference (art. 9 of the European Convention on Human Rights says: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”). So the freedom of conducting a business could prevail over the freedom of religion if it was pursued in an appropriate and necessary manner (proportionality and necessity test), and the employer proved to have adopted all the measures to reduce the negative impact of the alleged limitations on the exercising of religion freedom. In the Ms. Eweida case, the Court finds that the prohibition of wearing a cross imposed by British Airways to its employee was illegal and discriminatory because it doesn’t pass the proportionality test. The wish to project a neutral corporate image is a legitimate aim but a fair balance with the individual freedom to manifest religious [continua ..]
The same approach was followed by the Supreme Court of the United States. The freedom of religion is broadly protected by Title VII of the Civil Rights Act of 1964. Even if the company pursues a legitimate aim, the employer, who infringes the individual freedom of religion, has the duty to take all possible measures to accommodate the situation without undue hardship. So the company (it applies also to any public authority) is subject to a “reasonable accommodation test” to pass the scrutiny of legitimacy of its conduct. This happens also if the employee does not express a specific need for accommodation and the employer has no knowledge of his need. The only relevant circumstance is that the employee’s need for an accommodation was a motivating factor in the employer’s decision affecting the freedom of religion. “Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed” (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., 1st June, 2015). Between the American and the European system there is only a defining difference. Imposing a Look Policy [continua ..]
In Italy we have had very few decisions on this matter, basically converging on the European common framework (Legislative decree n. 261/2003 implementing directive 2000/78/CE). The most relevant ruling was taken by the Milan Court of Appeal on the 20th of May, 2016, n. 579 (Riv. it. dir. lav., 2016, II, 821 ff.). The case was brought forth by Mahmoud Sara, claiming pecuniary and non pecuniary damages for not being admitted to a selection of hostess to be engaged for an exhibition because of her refusal to remove the veil during job performing. The Court finds in the case a direct discrimination on the assumption that the exclusion from the possibility of taking part to a pre-hiring selection is based on the religious belonging of the applicant given that hijab is a typical cloth of Muslim religion. Besides, not wearing a headscarf didn’t constitute a determining and essential requirement for being part of the selection, as the advertising announced by the agency and the communication of the company exhibitor clearly specify. Having long, fluffy and loose hair is a priority subjective condition but not essential and not prejudicial for having the job. So, it shall be excluded a valid and proportionate justification for derogating the equality treatment principle. The Court, consequently, recognizes 500 € for non pecuniary damages on the assertion that “la lesione è stata significativa, attesa la violazione di un diritto [continua ..]