Il principio di laicita' come neutralita' e le possibili discriminazioni indirette nelle relazioni lavorative
Claudia Carchio *,Dottoressa di ricerca in Diritto del lavoro nell’Università degli Studi di Udine
Elisabetta Sartor, Dottoranda di ricerca in Diritto del lavoro nell’Università degli Studi di Padova
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.
In the first part of the paper, the A. illustrate those constitutional norms that bring to read the principle of laicism in a ‘strong’, ‘pluralist’ and ‘proactive’ sense. The State, besides ensuring – formally – every individual the right to manifest their own faith, should also strive to make this right effective by removing the disadvantages that could derive from the exercise of some cults. This should happen above all within the workplace, a places where the personality of the people is most frequently expressed. In this perspective, the prohibition of indirect discrimination could constitute the tool to fully implement the principle of secularism, in its positive and promotional meaning. On the contrary, the limits of the neutral approach to this principle will emerge by analyzing the national and European jurisprudence regarding the prohibition of wearing religious symbols in the workplace. This inhibition is not a direct discrimination (as it imposes everyone the same rule), however it ends up discriminating those workers whose religion requires to wear religious signs. Moreover it harms their freedom of expression and, at last, makes their social and economic integration more difficult (this could also bring to the so called ‘multiple discrimination’). In the second part, the A. propose to strengthen the role of collective bargaining – due to its flexibility – in order to achieve a fair balance between the companies’ needs and the workers’ freedom to express their faith.
Keywords: religion – principle of secularity – direct and indirect discrimination – multiple discrimination – socio-economic integration – collective bargaining.
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
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 ; 3) the [continua ..]
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 . 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» . 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 . Consequently, an authentic [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 [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 . 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 [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 . 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 . 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 . Moreover, a “third way” approach appears to be the best method to implement social and [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 ), 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 [continua ..]
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 . 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 [continua ..]