Religion, Equality and Employment in Europe: The Case for Reasonable Accommodation

by Katayoun Alidadi

Overview

The management of religious and ideological diversity remains a key challenge of our time - deeply entangled with debates about the nature of liberal democracy, equality, social cohesion, minorities and nationalism, security and foreign policy. This book explores this challenge at the level of the workplace in Europe. People do not surrender their religion of belief at the gates of their workplace, nor should they be required to do so. But what are the limits of accommodating religious belief in the workplace, particularly when it clashes with other fundamental rights and freedoms?

Using a comparative and socio-legal approach that emphasises the practical role of human rights, anti-discrimination law and employment protection, this book argues for an enforceable right to reasonable accommodation on the grounds of religion and belief in the workplace in Europe. In so doing, it draws on the case law of Europe's two supranational courts, three country studies -Belgium, the Netherlands and the UK - as well as developments in the US and Canada. By offering the first book-length treatment of the issue, it will be of significance to academics, students, policy-makers, business leaders and anyone interested in a deeper understanding of the potentials and limits of European and Western inclusion, freedom and equality in a multicultural context.

Awarded an honourable mention from the International Academy of Comparative Law for the 2018 Canada Prize!

Product Details

ISBN-13:	9781509933129
Publisher:	Bloomsbury Academic
Publication date:	10/31/2019
Pages:	320
Product dimensions:	6.14(w) x 9.21(h) x 0.67(d)

About the Author

Katayoun Alidadi is an Assistant Professor of Legal Studies at Bryant University (Smithfield, RI, USA) and a Research Associate at the Max Planck Institute for Social Anthropology (Halle, Germany). Her work focuses on human rights, conflict of laws, employment law and the intersections of law and religion. She was awarded the 2013 Ius Commune Prize for her research on reasonable accommodation for religion and belief. Katayoun holds a PhD in law from the KULeuven (Leuven, Belgium) and an LL.M. from Harvard Law School (Cambridge, MA, USA).

Table of Contents

Foreword v

Preface xiii

Acknowledgements xv

List of Abbreviations xxi

Table of Cases xxiii

Introduction: Religion and Employment in Europe. Thick Identities Colliding with Muscular Liberalism 1

I The Turn Towards Religion and Accommodation 1

II Scope of Analysis and Overview 6

III Reasonable Accommodation: Typology, Hard Cases, Substantive Equality and Decommodification 13

A Towards a Typology of Reasonable Accommodation 14

B Substantive Equality and Decommodification 17

IV Liberalism, Thick Identities and Coping Mechanisms 20

Part I Freedom of Religion out of its Comfort Zone. Religion in the Workplace and Europe's Two Supranational Courts

Manoeuvring a Multi-layered Fundamental Rights Architecture 27

1 Religion or Belief in the Workplace under the Human Rights Framework 31

I Human Rights, Religious Freedom and Diversity 31

A Introduction 31

B From Toleration of Minorities to Religious Freedom for All? 32

C Early Developments under International Law to Horizontalisation of Human Rights 36

II The European Convention on Human Rights and the ECtHR 40

A Article 9 ECHR and Religion or Belief in the Workplace: Overview 40

B Facing the Restraints of Time: Religious Time Claims before the ECtHR 46

C Religious Dress before the ECtHR: Surrender of the 'Clashing Headscarves' Debate to Member States 50

D Other Religious Practices before the ECtHR 53

E Human Rights in the Workplace in Flux: Eweida and its Ramifications 56

F Clashing Rights and Religious Accommodations: Calling for the Wisdom of Solomon? 62

2 The EU and Religion or Belief in the Workplace: From the Rapid Rise of EU Non-Discrimination Law to the Limits of Market-Rationalised Equality Law 71

I Introduction: The EU 'Fundamental Rights Revolution 71

A The Story of Equality Law as a Metaphor for the EU project 71

B From Market Efficiency to Decommodification? 75

C The Employment Equality Directive: Convergence of Terminology, Divergence of Understanding? 76

D On 'Religion or Belief Discrimination under EU Equality Law 82

E Direct-Indirect Discrimination Dichotomy and the Duty of Reasonable Accommodation 90

F Indirect Discrimination and Reasonable Accommodations: Different Sides of the Same Coin? 95

II The CJEU and Religious Accommodations in the Workplace 100

A Towards the First Two CJEU Religious Discrimination Decisions 100

B Religious Dress: Direct Discrimination versus Indirect Discrimination, and the Duty to Accommodate 106

C Reconciling Work and Religious Time under EU Equality Law: Remembering Vivien Prais 109

Concluding Remarks on Part I 113

Part II Religion or Belief in the Belgian, Dutch and British Private Sector Workplace: Between Assimilation Demands and Reasonable Accommodation

European Country Studies: The Importance of Contextualisation 117

3 The (Nom)Accommodation of Religious Dress in the European Workplace 125

I Introduction 125

II Religious Dress in the Employment Context in Belgium: Judgment-Proof Restrictive Employer Practices 125

A HEMA: Normalised Intolerance towards the Headscarf in Belgium? 127

B G4S: Company Neutrality 'Practice' Suffices 130

C The Club Case in Brussels: Headscarves, Books and Shoes 134

III Accommodation of Religious Dress in the Dutch Workplace: Illustrating the Divergent General and Special Effects of Anti-Discrimination Law 136

A The ETC and Religious Dress Accommodation 137

B Dutch Courts and the Accommodation of Religious Dress 146

IV Accommodating Religiously Distinct Dress in the British Workplace; Progressive Case Law and 'Flexible Tolerance' on the Ground 151

A Religious Dress and Grooming Disputes in Britain 152

V Comparison: Corporate Neutrality Policies and the Uneven Rooting of Reasonable Accommodation 157

A Legal Assessment of Private Neutrality Policies: Bias Hidden in Plain Sight 160

4 Conflicting Religion-Worktime Demands: Is Europe Keeping Up with the Times? 167

I Introduction: Intersection of Human Rights and Working Time Regulation 167

II Belgian Case Law on Religion-Worktime Conflicts 169

A Sabbath and Religious Service 172

B Resting During Ramadan 175

III Dutch Case Law on Religion-Worktime Conflicts 176

IV British Case Law on Religion-Worktime Conflicts 180

V Conclusion 188

5 Religious Affiliation Discrimination and Miscellaneous Accommodation 193

I Introduction 193

II Religious Affiliation Discrimination: The Thin Heart of the Matter? 196

III Negative Work Environment and Harassment; Proselytising in the Workplace 199

IV Objections to Job Duties Grounded on Religion or Belief 201

A Traditional Conscientious Objections 201

B Modern Conscientious Objections 203

C Multicultural Objections 208

V Let's Shake on it? Social and Gender Relations in the Workplace 211

A Redefining the Parameters of Politeness? Refusal to Shake Hands in the Netherlands 213

B Shaking Hands in Belgium 223

C Shaking Hands in the UK 225

VI Religious Prayer and Dietary Considerations in the Workplace 228

6 Country Study Insights and Reasonable Accommodation 231

I The Limits of the Law 231

II The Added Value of Reasonable Accommodation for Religion and Belief in the European Context 234

III Arguments Against Reasonable Accommodation and Rebuttal 239

A Comprehensive EU Anti-discrimination Law Makes Reasonable Accommodation Obsolete 243

B Adopting such Right is Undesirable and/or Politically Unfeasible 245

C 'Voluntary Accommodation' Renders Legal Enforceability Redundant 248

D Settling for Reasonable Accommodation is Short Selling Minorities 252

E Reasonable Accommodation in Europe is a Misfit 256

Conclusion 261

Bibliography 269

Index 283

Editorial Reviews

"Katayoun Alidadi's monograph is a timely and important contribution to the debate on religious discrimination and accommodation of religious belief (and non-belief) in the workplace." --Journal of Religion in Europe

"The greatest strength in the work is in the comparative approach which provides suggestions for English law. It shows how reasonable accommodation applies to different requests made by employees, and so applies practically to different workplace scenarios. This may prove to be useful for both practitioners and academics as reasonable accommodation continues to develop." --Ecclesiastical Law Journal

From the Publisher