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.
Articoli Correlati: libertà di religione - discriminazione indiretta - misure proporzionate - 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 are valid and effective for all workers, despite their country of origin and/or workplace. At the same time, collective agreements in this respect are signed at group level and the general framework could be only embedded not derogated at plant or company level. ii) This ongoing process of standardisation of professional cultural references and organizational models does not affect the religious creed of the people, which is still very strong and influential, at least in many parts of the world. Secularization, intended as a loss of relevance of religion in social life, is experienced in some parts of Europe. It is not as widespread in other continents, where new forms of spirituality and new churches are increasingly growing. iii) Freedom of religion could enter into conflict not only with business needs or the negative version of the same freedom, but also with the right of equal treatment enshrined by law to specific minorities or groups, and with public interests (health, [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 such beliefs’. On 12 June 2006, Ms. Achbita was dismissed because of her continued insistence on wearing her Islamic headscarf at work. She challenged that dismissal in the Belgian courts. The Belgian Court of Cassation, before which the matter was brought, has queried the interpretation of the EU directive on equal treatment in employment and occupation. In essence, it wishes to know whether the prohibition on wearing an Islamic headscarf, which arises from a general internal rule of a private undertaking, constitutes direct or indirect discrimination. The ECJ finds that G4S’s internal rule refers to every wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule thus treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally. So it does not introduce a difference 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 belief was not struck. “Ms Eweida’s cross was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance” (ECJ, Case of Eweida and Others v. the United Kingdom, judgement 27th May 2013). At the same time, the Court admits prohibitions of wearing a cross in hospitals, of refusing to register civil partnership of same-sex unions, of objecting to provide psycho-sexual counselling to same-sex couple, because they pursue a legitimate aim (protection of health and safety, securing the rights of other persons, providing a public service without [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 that prohibits wearing caps as too informal for the company’s desired image is considered an intentional discrimination (disparate treatment effect), that requires reasonable accommodation. “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favoured treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice”). In both systems such employer’s conduct is unlawful and entitled the worker or the jobseeker for restoration and compensation
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 primario che incide in modo rilevante sull’identità personale e sui modi di esplicazione di tale personalità”, but denies any pecuniary damage because the agency didn’t get the procurement from the exhibitor. It is true that the decision is regrettable where it finds a direct discrimination instead of an indirect discrimination (it is a matter of fact that Ms. Mahmoud Sara was treated less favourable not because of her religion but because of the fact that the implementation of a neutral criterion like wearing hair down and loose determines a disparate impact on someone belonging to the Muslim faith) (see, the comment of M. PERUZZI, Il prezzo del velo: ragioni di mercato, discriminazione religiosa e quantificazione del danno non patrimoniale, in Riv. it. dir. lav., 2016, II, 828 ff.). But it is also true that the common core of the equality treatment principle has been correctly applied and enforced, representing a milestone of Italian [continua ..]