Preliminarmente le A. si propongono di illustrare le ragioni per le quali, in base al principio di uguaglianza sostanziale (art. 3, comma 2, Cost.), il principio di laicità, nel nostro ordinamento, dovrebbe essere inteso in senso pluralista e ‘proattivo’. Lo Stato, oltre ad assicurare – formalmente – ad ogni individuo il diritto di manifestare la propria fede, dovrebbe altresì adoperarsi per rendere effettiva tale libertà, promuovendo l’adozione di mezzi idonei a rimuovere le condizioni di maggior sfavore che potrebbero derivare dall’esercizio di alcuni culti. Ciò dovrebbe avvenire, a maggior ragione, nel luogo di lavoro, quale contesto sociale elettivo di esplicazione della personalità umana. In questa prospettiva, il divieto di discriminazioni indirette può costituire il grimaldello per la piena attuazione del principio di laicità, inteso in senso positivo e promozionale. Le limitazioni della – opposta – concezione neutrale del principio in questione emergeranno dall’analisi della giurisprudenza nazionale ed europea in relazione al divieto di indossare simboli religiosi nei luoghi di lavoro: tale divieto, infatti, se, da un lato, non determina alcuna discriminazione diretta (in quanto impone a tutti, senza distinzioni, la stessa regola), di fatto finisce per discriminare i lavoratori la cui religione impone di indossare segni distintivi, lederne la libertà di manifestare la propria personalità e, da ultimo, renderne più difficile l’integrazione socio-economica (talvolta causando, in questo modo, anche forme di c.d. discriminazione multipla). Secondariamente, le A. propongono di valorizzare il ruolo della contrattazione collettiva per addivenire ad un equo bilanciamento tra le esigenze dell’im­presa e la libertà di esprimere la propria fede nei luoghi di lavoro: più della legge, generale e astratta, potrebbero essere proprio i contratti collettivi gli strumenti più idonei a trovare le soluzioni più adeguate ai diversi contesti aziendali e alle, conseguenti e diversificate, esigenze dei lavoratori e datori.

SOMMARIO:

1. Introduction - 2. The pluralist and proactive conception of the principle of laicism in Italy - 3. Implementing the principle of laicism within the working relationships: a difficult challenge - 4. The prohibition of indirect discrimination as a tool for the full implementation of the principle of laicism in a ‘strong sense’ - 5. The implementation of the principle of secularity within the workplace: a response to the socio-economic integration need and a reaction to multiple discriminations - 6. Guidelines for managing the differences within the workplace: limits of the legal provisions and potentialities of the collective bargaining - 7. Conclusions - NOTE

1. Introduction

According to Article 1 of the Italian Constitution «Italy is a democratic Republic founded on labour»; Article 2 states: «The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed (...)»; Article 3 protects all the citizens against discriminations founded, among the others, on religion and affirms the duty of the Republic to remove those obstacles which constrain the freedom and equality of citizens, thereby impeding the full development of the human person; Article 4, par. 2: «Every citizen has the duty, according to personal potential and individual choice, to perform an activity or a function that contributes to the material or spiritual progress of society»; Article 8: «All religious denominations are equally free before the law»; finally, Article 19 provides: «Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality». In the light of these Constitutional provisions, it emerges the relevance of: 1) the working environment as one of the most important public places where each person might expresses their own personality; 2) the personality of each citizen, which is composed of many aspects, includes the religious sphere or sentiment [1]; 3) the religious freedom deserves a specific protection properly within the workplace as the deep involvement of the person into the labor relationship has an impact on each one’s faith: in fact every creed does not only impose liturgical rules, but also lifestyles, behaviors and daily practices that produce many implications on employment relationship [2]. However, what the Constitution does not say is how this freedom should be protected within the workplace and which are the best tools to effectively achieve the constitutional principles. The paper will try to provide an answer to this question.

2. The pluralist and proactive conception of the principle of laicism in Italy

The Italian Republic is a non-confessional state. This principle stems from those constitutional provisions that recognize the widest freedom of religion, state the equal freedom to all religious confessions and exclude the profession of a certain religion as a ground of legitimate discriminations among citizens [3]. Since 1989, the Italian Constitutional Court has stated, on one hand, that the principle of secularity is one of the supreme principles (judgment n. 203/1989). On the other hand, the Court affirmed that: «the intervention of the public authorities aimed at making possible or facilitating cult activities - such as the manifestation of the fundamental and inviolable religious freedom set by Article 19 of the Constitution - must be compliant to the supreme principle of secularity, which implies not indifference to religions, but the role of the State as a guarantor of the freedom of religion, in a regime of confessional and cultural pluralism» [4]. According to these indications, the Italian Republic is a secular State. It does not mean that the state is not involved into religious issues, considering them a private matter of its citizens, but in the sense that it recognizes the equal freedom of all religious denominations before the law and the widest freedom of conscience and worship. Regarding the civil effects as well, the state cannot discriminate citizens on the ground of the religion they profess [5]. Consequently, an authentic interpretation of the Constitutional Charter imposes to read the principle of laicism in a ‘strong’ sense: in other words, in the national legal framework, laicism does not mean neutrality [6]. The equidistance of the State from all religious beliefs does not mean indifference to them or a difficulty in cohabitation with one another: on the contrary, it requires the institutions to positively intervene in order to ensure effective religious freedom for all faiths. Therefore, the right to religious freedom, as well as having a negative dimension (which implies the prohibition for the State to interfere into religious matters), also assumes a positive or promotional connotation, consisting in the commitment of the Republic «to remove obstacles of an economic and social nature, which, by limiting the freedom and equality of citizens, prevent the full development of the human person and the effective participation of all workers in the political, economic and social [continua ..]

3. Implementing the principle of laicism within the working relationships: a difficult challenge

Despite the suggested interpretation of the principle of laicism seems to be the most compliant with the Constitution, however many factors support the conclusion that this approach often remains – unfortunately – unfulfilled in our country. First, we can notice that many aspects of the right of religious freedom receive a different protection depending on the existence (or not) of a specific agreement between the State and each religious confession (Article 8, par. 2, Const.). For instance, while the Italian Republic ensures all the schools pupils the Catholic education and finance it directly, teaching other religion beliefs requires a specific agreement with the State, a specific request from the faithful and their own financing. In a similar way, although Article 26 of the Law n. 354/1975 recognizes to all prisoners «the freedom to profess their religious faith, to educate themselves in it and to practice its worship», these rights are reserved in a stable manner just in favor of the Catholics. They alone can celebrate their rituals thanks to the presence, in each prison, of a special chaplain, bound by an employment relationship with the prison administration. On the contrary, members of other religious can benefit of this freedom in a different manner, as they are granted, only upon request and with the authorization of the administration, to receive the assistance of the ministers of their own cult and to celebrate their rites [10]. Similar conditionings in the access of these fundamental rights of the faithful, such as education and spiritual assistance, are even more restrictive due to a recent interpretation of the Constitutional Court [11]. Some judgments have denied the existence of a legal obligation for the State to negotiate agreements with each requesting religious confessions. Consequently, – as some authors argued [12] – the Government can refuse to begin any negotiations, based on a discretionary choice, which is moreover unquestionable by the judiciary. Religious confessions, who are interested in concluding an agreement to make effective and improve their religious freedom, find themselves unprotected and this is in contrasts with both, the principle of jurisdictional protection and the principle of laicism, in its promotional and proactive perspective. In addition, – and to the extent that here concerns – it should be noted that the pluralist, positive and proactive [continua ..]

4. The prohibition of indirect discrimination as a tool for the full implementation of the principle of laicism in a ‘strong sense’

The most recent cases ruled by the Court of Justice and the European Court of Human Rights concerning religious discrimination within the workplace move towards a neutral approach to the principle of laicism. In this way, judgments on the prohibition of indirect religious discriminations within the workplaces tend to be less restrictive, compared with the national legislation – despite some uncertainties and ambiguities persist [17]. Before focusing on the prohibition of indirect discrimination, it worth to remind the main provisions concerning the religious discrimination stated at national and European level. First, the Charter of Fundamental Rights of the European Union (the so-called Charter of Nice) that, since 2009, has acquired the same binding legal effect of the Founding Treaties, declares some fundamental principles against the religious discriminations. According to its Article 10 «everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance». Article 20 enshrines the principle of equality and Article 21 establishes that «any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited». Finally, Article 22 specifies «the Union shall respect cultural, religious and linguistic diversity». Among the secondary European legislation, paragraph 2 of the Directive no. 2000/78/EC defines and prohibits direct and indirect discrimination based, inter alia, on the religious ground. In the Italian order, the Legislative decree n. 216/2003 implemented this directive and is, nowadays, the main regulatory reference. Nevertheless, regarding the derogation admitted to the prohibition of indirect discriminations, scholars observed a discrepancy between by the European legislation and the national provision [18]. According to Article 2, par. 2, letter b, Directive n. 2000/78/EC, an «indirect discrimination» occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a [continua ..]

5. The implementation of the principle of secularity within the workplace: a response to the socio-economic integration need and a reaction to multiple discriminations

Instead of choosing between the employers’ interest of neutrality and the worker’s religious freedom, a “third way” approach appears to better accomplish the principle of secularism in a strong sense. Indeed, it could allow everyone to manifest their own belief freely, of course with the only limitation of respecting the fundamental human rights and the public order of each state [23]. This conclusion is not weakened by the argument that considers the restrictive interpretation of the principle of non-discrimination (both direct and indirect) as an unjustified limitation to the contractual freedom of private individuals and the State in its contractual relations. According to this theory, the employer’s imposition of particular conditions could be justified by the need to protect the contractual freedom, even when they contrast with the religious needs of the employees [24]. Contrary to this interpretation, it should to be noted that the notion of contractual autonomy changes over times, in order to defend more and more the weakest people. In other words, the boundaries of the contractual autonomy should be redraw – rather than limited – in order to reflect the new sensitivity towards the fundamental human rights and prevent the risk that the contractual manifestation may conflict with those unavoidable rights [25]. Moreover, a “third way” approach appears to be the best method to implement social and cultural integration of people from different cultures and thus avoid manifest violations of the principle of equality, especially when workers access the labor market and have to keep their jobs [26]. The heterogenesis of the purposes mentioned above consists precisely of this: ignoring the differences – as the supporters of the assimilationist model do – ends up generating other differences, and therefore new tensions based, above all, on gender and socio-economic condition of members of different religions. Indeed, the analyzed Dahlab case highlights how the neutral approach to the principle of religious freedom actually increases the difficulties faced by some weaker categories, such as women of different cultures, when they enter or remain into the labor market and thus need to be economically and socially integrated into the Western Countries context [27]. This phenomenon also determines the development of increasingly evident forms of multiple [continua ..]

6. Guidelines for managing the differences within the workplace: limits of the legal provisions and potentialities of the collective bargaining

What has been said so far, reveals that the real challenge is to ensure a better integration within the labor relationships in order to uncover that indirect discriminations that, behind ‘neutral’ measures aimed at all workers (current or potential), actually hide unfavourable actions only for some of them. On that note, it seems necessary to analyze how the differences can be effectively managed in order to make them coexist in the same working environment. The starting point of this assessment is the general principle according to which each employer has a legal obligation to create the most favorable working conditions for its employees, in order to create a work environment that guarantees mutual respect, safety, physical and psychophysical well-being of all workers (article no. 2087 Civil Code). However, aside from this general principle and the prohibitions of discrimination contained in Legislative Decree no. 216/2003 and in Law no. 300/1970 (in particular articles no. 8 and 15 [34]), the Italian legislation does not provide any practical guideline. Actually, legislative regulation, due to its generality and abstractness, does not seem to be the most appropriate tool to detect and protect the situations that may occur within the company environment. In order to strengthen the previous statement we can recall the strong criticism who affected the draft law proposed by the Astrid Study Group in 2017 (Rules about the freedom of conscience and religion). Article 8 of that bill provided the employers (both, public and private) to promote positive actions in order to contrast the discrimination grounded on religious belief within the workplaces, adopting the same model proposed by article 42, Legislative Decree no. 198/2006 [35]. According to this draft, unequal treatments could also be implemented to protect the religious beliefs of workers. For this reason some scholars feared a possible contrast with the principle of secularism as intended in the Italian legal order, so is to say the prohibition for the institutions to pay any attention to religious factor and consequently to provide discriminatory protections [36]. However, this argument seems to forget the constitutional principles laid down by Article no. 3, par. 2 of the Constitution which, besides being the legal basis of positive actions, also implies a twofold dimension to the principle of secularity. A negative one (the principle of legality by subtraction) [continua ..]

7. Conclusions

Conclusively, it is possible to highlight how many difficulties the right to religious freedom meets in its actual implementation: national legislation and collective bargaining have so much work to do. The challenge of a multi-ethnic society is to guarantee everyone, in their diversity, an equal space of freedom and opportunity, overcoming the formalistic and neutral conception of the principle of secularity. Bearing this in mind, even the contrast between the employers’ interests and the workers’ religious needs suggested by supranational courts in the examined decisions appears more faded. In other words, the balancing method should be used not to oppose different and irreconcilable instances, but in order to integrate them: this do not mean limiting anyone’s freedom (neither the employer’s one not the worker’s one), but finding a way to blend them and make them live together [43]. In our opinion, this result can only be achieved through public incentives (see paragraph 6), which can support entrepreneurs who decide to adapt their company organization to the religious needs of their employees. Leaving private individuals alone facing the responsibility to achieve a similar issue appears utopian and not feasible. Moreover, public incentives would be completely justified in the light of the constitutional purpose it aim to achieve: the implementation of the principle of secularity in a strong, pluralist and proactive sense, as sanctioned by Articles 3, par. 2, 8 and 19 of the Italian Constitution. A similar inducement should help to create the conditions for a work environment in which cultural and religious integration together with gender and socio-economic assimilation would be ensured. This will benefit not only the employer, who can count on a safer and more efficient working environment, but, above all, the entire community, slowing down the pace of social tensions [44]. In this perspective companies could become experimental cells of a new social model, incubators of better habitats, in which what unites – a work, economic and social serenity – is more valued with respect to what divides [45].  

NOTE