L’articolo affronta il tema dei possibili collegamenti problematici tra le norme sull’orario di lavoro e le convinzioni religiose dei lavoratori. Dopo aver esaminato le sfumature del concetto di accomodamento ragionevole che è stato sviluppato nei sistemi giuridici nordamericani per gestire questi problemi, l’autore analizza la diversa strategia adottata nell’ordinamento italiano, concentrandosi sulle leggi di approvazione delle intese di cui all’articolo 8 della Costituzione. Infine, l’articolo prende in esame alcune delle principali questioni sollevate da una recente pronuncia con cui la Corte di giustizia dell’Unione europea ha affrontato la tematica, nel quadro del diritto antidiscriminatorio.

SOMMARIO:

1. Introduction - 2. Working time and reasonable accommodations for religion: North American experiences - 3. The Italian regulatory framework - 4. Recent perspectives of the CJEU - NOTE

1. Introduction

Over the last few decades, the coexistence of different cultures within the modern Western societies has raised complex issues, which often impose specific questions on the deep foundations of some traditional legal categories. From this point of view, the wide reflection on the universal basis of human rights and their relations with the principles pertaining to national constitutional traditions is probably one of the best-known examples [1]. These topics, of course, are strictly connected with the core of the large debate concerning multiculturalism, which has today a strong influence on the different strategies of integration implemented all around the world [2]. As everyone may see, the challenges faced by such policies are not completely extraneous to labour law. Since the workplace is nowadays ever more a context where individuals with disparate cultural backgrounds are forced to meet, labour courts have been frequently compelled to solve new conflicts of interests, whose number is supposed to increase under the pressure of migrations. Not rarely, in Europe, some of the most relevant cases originated from the contrast between workers’ religious beliefs and the employer’s business needs and led to judicial pronouncements at the supranational level. For instance, in 2017 the Court of Justice of the European Union (CJEU) dealt with a French dispute in which a Muslim employee was dismissed because she refused to take off her Islamic headscarf, despite the explicit request of the employer who would have liked to satisfy the preferences of his clients. On this occasion, the Luxembourg judges stated that the employer’s willingness to take account of customer’s wishes of no longer having the services provided by a worker wearing an Islamic headscarf «cannot be considered a genuine and determining occupational requirement» within the meaning of Directive 2000/78/EC [3]. Thus, that circumstance cannot be invoked in order to exclude the existence of a discrimination on the ground of religion. However, as explained in another famous preliminary ruling of the same year, a justification may come from an internal rule of the company prohibiting the visible wearing of any political, philosophical or religious sign in the workplace [4]. Referring to a case in which a Muslim woman did not want to comply with such a regulation, the CJUE clarified that the aforementioned prohibition does not constitute direct [continua ..]

2. Working time and reasonable accommodations for religion: North American experiences

It is well known that each religion often has an impact on the rhythm of its believers’ life. Indeed, not unusually a lot of doctrines establish religious festivals, days of rest and moments that should be dedicated to prayer. Not by chance, some international instruments include in the freedom of religion the possibility to celebrate periods of rest and holidays for religious reasons [8]. On the other hand, the vast majority of employment contracts obviously require workers to observe working time, which sometimes could be incompatible with their religious dictates. As it is easy to understand, the main problems arise within horizons characterized by the presence of creeds whose precepts are not immediately adaptable to the traditional civil calendar applied in the workplace. Difficulties then may increase when there is a plurality of diversities among the employees, which can be an obstacle to the definition of a single point of equilibrium. The matter is not new for Countries in which ethnic and religious pluralism is a feature of the civil society from a long time and more than elsewhere. In such contexts, the conflicts at issue led some national legal systems to develop regulatory techniques focused on the concept of “reasonable accommodation”. This is true for the United States, where Title VII of the Civil Rights Act imposes upon employers a duty to reasonably accommodate their employees’ religious beliefs, observances and practices, unless it would entail an undue hardship on their businesses [9]. The notion of reasonable accommodation was originally absent from the U.S. legislative framework, which at first did not go beyond the provision of more traditional principles of non-discrimination. It was subsequently incorporated into statute in 1972, when the Congress decided to endorse some interpretative practices of the Equal Employment Opportunity Commission, the federal agency responsible for enforcing rules against workplace discriminations. Since its first activities, this administrative body held that, regarding religion, the anti-discrimination law implied that employers had to accommodate to the reasonable religious needs of employees, to the extent that it could be done without serious inconvenience [10]. Such an approach seems to call for quite an individualized method which could suggest the idea that, at least in theory, promoting equality may require also differentiated treatments. Hence, [continua ..]

3. The Italian regulatory framework

Differently from North American legal systems, the EU regulatory framework does not provide for a duty to reasonably accommodate workers’ religious beliefs. As it is well known, in Europe, the main point of reference is Directive 2000/78/EC establishing general rules for equal treatment in employment and occupation. Regarding religion, this instrument is focused on more traditional prohibitions of discriminations, while reasonable accommodations are set forth only for guaranteeing the equal treatment of individuals with disabilities [29]. Correspondingly, even in Italy, a duty to accommodate exists only for furthering employment inclusion of disabled persons [30]. It has been introduced in order to ensure the compliance of the national legal system with the EU directive, as indicated by an important ruling of the CJEU [31]. Despite the absence of a general provision concerning religion, in the Italian context, there are statutory regulations that lay down employer’s specific obligations, whose object sometimes appeared to be quite similar to a reasonable accommodation. It may be worth mentioning, in this respect, some of the rules stated by the acts approving the agreements concluded by the Government and certain non-Catholic Communities representatives, pursuant to Article 8 of the Italian Constitution [32]. For example, Article 11 of Law no. 516/1988 establishes that Adventists have the right to observe Sabbath rest, which goes «from sunset on Friday to sunset on Saturday», and to use such period as their weekly rest day. According to the same provision, this right shall be exercised «within the framework of the flexibility of work organization». Furthermore, whenever the employee does not work on Saturdays, working hours shall be recovered on Sundays or on other days, without any extraordinary compensation. Lastly, it is stated that no prejudices shall be caused to the crucial needs of the essential services. Likewise, an analogous approach has been implemented also for workers practicing some other religions, though the peculiarities of each considered doctrine have led to recognize partially different rights. Thus, Article 4 of Law no. 101/1989 allows Jewish not to work on Saturdays, by using a technique that is similar to the one just referred to. An equivalent regulation, then, is applied to a list of Jewish religious holidays [33] and to festivals of other religions, such as [continua ..]

4. Recent perspectives of the CJEU

More recently, the examined problems have been directly faced by the CJEU, with a preliminary ruling on an Austrian statutory provision establishing that Good Friday was a paid public holiday only for members of some specific Churches [51]. Precisely, after indicating a list of public holidays for all employees in Austria, Article 7 of Arbeitsruhegesetz (Act on Rest Periods and Public Holidays) stated that Good Friday is also a public holiday, but only for workers who are «members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church». Consequently, only those workers were entitled to earn, in addition to the remuneration for the work eventually done on that day, also the pay that is always owed in case of public holidays. Despite this regulation, an Austrian employee who were not member of any of the aforementioned Churches sought the public holiday pay for the work he performed on Good Friday and claimed that he had been discriminated as a result of the denial of such payment. These claims have been substantially upheld by the CJEU, according to which «national legislation under which, first, Good Friday is a public holiday only for employees who are members of certain Christian churches and, second, only those employees are entitled, if required to work on that public holiday, to a payment in addition to their regular salary for work done on that day, constitutes direct discrimination on grounds of religion». In detail, it has been stated that the affected rule gave rise to a differentiated treatment that was directly based on the employees’ religion, contrasting with the obligations laid down by Articles 1 and 2(2) of Directive 2000/78/EC. Although the Austrian provision was aimed at recognizing the importance of Good Friday for some religious communities, the Court outlined that the 24-hour rest period was granted to employees who were formally members of one of such communities, regardless of whether or not they perform particular religious duties on that day. Thus, the situation of those employees has been considered not different from that of other workers who wish to have a rest or leisure period on Good Friday [52]. Furthermore, the Court held that «until measures reinstating equal treatment have been adopted by the national legislature, it is for employers to ensure that employees who are not members of one of those churches [continua ..]

NOTE