As part of collaborative research between the Religious Freedom & Business Foundation and University of Oklahoma College of Law, Ahrens Kerwood (J.D./Masters Candidate, Class of 2017) looked at the legal protections for religious non-discrimination in the workplace in Europe.
Ahrens did this research as part of a class taught by Professor of Law at the University of Oklahoma, Evelyn Aswad, who received OU’s 2016 David L. Boren Award for Outstanding Global Engagement in recognition of her commitment to and support for Oklahoma University’s international mission.
Standards for freedom of religion or belief in the workplace in Europe
I. QUESTION DISCUSSED
(1) What are the legal protections for religious non-discrimination in the workplace, particularly in regard to manifestation of one’s religion through the wearing of religious symbols and the acceptance of religious holidays, for states answerable to the European Court of Human Rights?
(2) How do those standards compare to domestic standards in five states (France, Greece, Italy, the United Kingdom, and Switzerland) and international standards?
(3) Should any amendments to the Religious Freedom & Business Foundation’s Corporate Pledge on Freedom of Religion or Belief be added to better ensure companies protect freedom of religion or beliefs when operating in Europe?
II. BRIEF ANSWER
(1) The European Court of Human Rights (hereafter “ECHR”) often allows limitations on the wearing of religious symbols, justifying that they fall within the “margin of appreciation” (i.e. deference) afforded to state decisions. ECHR FoRB (hereafter ‘FoRB”) standards are lower when compared to international standards that are defined by UN treaties, bodies, and special rapporteurs. A host of socio-political and economic reasons might explain why European standards are weaker.
(2) Legal protections for religious non-discrimination in the workplace in the five researched states are substantially limitable by domestic law. Although each of the five states studied in this memo have constitutional or quasi-constitutional provisions protecting freedom of religion or belief, legislative and judicial actions occasionally run counter to these protections. Many of the five states have restricted wearing religious symbols in the workplace, especially Islamic symbols. Religious holidays are different in each state, but employees more often than not are responsible for fully informing and satisfying their employers in order to take them off.
(3) Finally, you may want to consider amending the Corporate Pledge to include “manifestation” specifically into the document to further strengthen ties to international law, and to reference the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion of Belief’s Article 6(h) in order to strengthen protections for religious holidays.
This memo is organized in the following manner. First, Section A focuses on European law under the European Convention of Human Rights, specifically laws pertaining to manifestation of an individual’s religion within the workplace. Next, Section B delves into domestic law and socio-political elements of religious acceptance within the five selected states. Section C compares European regional law to the international standard, addressing potential short-comings of the law. Finally, Part VI offers suggestions for future efforts to ensure companies follow international standards in the workplace rather than weaker European and domestic standards.
A. European Regional Law
The aim of the section is to determine the role of European regional law in the interpretation of freedom of religion and belief in the workplace, specifically regarding manifestation of FoRB in the workplace. This includes an overview of current case-law under the ECHR, how the court determines if a state is in violation of regional religious freedom protections, and when deference is given to domestic law within a margin of appreciation, allowing the state to determine what is best to resolve conflicting human rights claims.
European human rights law stems from the European Convention of Human Rights (hereafter “the Convention”). Article 9 specifically protects FoRB, stating in the first paragraph that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom… to manifest his religion or belief, in worship, teaching, practice, and observance.” However, Article 9(2) provides limitations that states may enact on FoRB so long as they would not vitiate this freedom. These limits are judged by a tripartite test encompassed in Article 9(2), wherein the limitations are (1) proscribed by law, (2) necessary in a democratic society, and (3) in the interests of public safety, the protection of public order, health or morals, or for the protection of the rights and freedoms of others. All five states studied in this paper have ratified the Convention with no reservation, understandings, or declarations attached to article 9 interpretations. It is worth noting that ECHR decisions regarding Article 9 suits have continued to increase over the past 10 years, largely due to the increasing role of religion in the socio-political arena.
Freedom of thought, conscience and religion can be broken into two parts: forum internum and forum externum. Forum internal refers to internal convictions of thought that are “forged in a person’s individual conscience and cannot therefore prejudice public order.” No limitations may be placed by the state on one’s thinking. Forum external refers to manifestation, which thereby expresses one’s FoRB in a manner that is visible to others. As mentioned previously, Article 9(1) extends one’s manifestation to worship, teaching, practice, and observance. For purposes of this study, the primary definitive focus for manifestation is in an individual’s right to worship through the display of religious symbols, and an individual’s right to observe through the adherence to religious holidays and days of rest. However, lines between the four forms of manifestation are often blurry, resulting in considerable overlap, and the court rarely characterizes a manifestation definitively as only one form. Therefore, while the four forms are a useful tool, manifestations are not limited by them.
2. Manifestation Defined
In order to initiate findings for a violation of an individual’s FoRB, the ECHR first analyzes if a manifestation of one’s religious beliefs occurred. If a manifestation is found, the ECHR then determines if there was interference by the employer, and whether that interference was proportional and legitimate under a balancing testing. Not every act can be said to constitute a manifestation. The ECHR stated in Pichon and Sajous v. France the following:
However, in safeguarding this personal domain, Article 9 of the Convention does not always guarantee the right to behave in public in a manner governed by that belief. The word ‘practice’ used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief.
The test to identify a manifestation within the meaning of Article 9 is that it must be “intimately linked to the religion or belief,” and the determination therefore must rely on factual findings of the case that exemplify the existence of “a sufficiently close and direct nexus between the act and the underlying belief.” Additionally, the ECHR emphasized that this nexus need not be a mandated duty by the religion that the applicant acted upon.
The ECHR also determined that employers, both public and private, have a positive obligation to protect an employee’s right to manifest. In doing so, however, the ECHR recognized that sometimes a balance must be struck between the competing interests of the employee’s right for accommodations and an employer’s legitimate interests. Once a balancing test is determined necessary, the ECHR has often awarded deference to a domestic court’s decision, granting a wide margin of appreciation in cases of competing rights regarding when and where interference is necessary. The margin of appreciation has been defined as “the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights.”
a. Wearing Religious Symbols as a Manifestation of Worship
Current ECHR case law regarding the wearing of religious symbols in the workplace is spearheaded by a well-known 2013 decision, Eweida and Others v. the United Kingdom, wherein four applicants brought discrimination suits against their employers based on their Christian beliefs. The case is significant because it is the first ECHR case where an individual’s FoRB manifestation outweighed a secular interest of an employer. Of the four applicants, two cases specifically dealt with the wearing of religious symbols in the workplace; Ms. Eweida’s case under private authority at British Airlines and Ms. Chaplin under public authority at Royal Devon & Exeter Hospital. If an action is not directly attributable to the state, the ECHR examines whether State authorities sufficiently secured domestic legal order and protections in accordance with Article 9.
In Eweida, both applicants wore a cross and chain around their neck, and their respective employers each had policies in place disallowing the wearing of the cross visibly. These displays constituted a manifestation of their religion and interference by their employer respectively. Upon applying a balancing test to Chaplin’s scenario, the ECHR found that the ban was proportional and legitimate in order to protect health and safety in the hospital ward for nurses and patients. Conversely, the ECHR held that the employer’s objective in Eweida’s scenario, projecting a corporate image, was disproportionately restrictive and a violation of her Article 9 rights. The ECHR did find that the aim of the company policy was “undoubtedly legitimate,” but held that domestic courts furnished too much weight to this factor.
Eweida provides a watershed moment for Article 9 jurisprudence, because it is the first case where an individual’s public FoRB manifestation outweighed a secular interest of an employer. The result solidifies that manifestation must be attributed a basic weight that cannot not be ignored during a domestic court’s balancing test. Future cases will enlighten us on how this fair balance may be struck and how much weight is attributable to the perceived harm.
European states have been allowed to limit the wearing of religious symbols because they are (1) powerful external symbols on impressionable young minds in a school setting (Dahlab v. Switzerland), (2) seeking to enforce a state-wide policy of secularism at state universities (Sahin v. Turkey; Karaduman v. Turkey; Bulut v. Turkey), or (3) seeking to ensure public order and protection of beliefs of others from political parties that wish to enforce shari’a law (Refah Partisi and Others v. Turkey). Each of these scenarios were deemed to be within the states’ margin of appreciation to decide where and when to limit FoRB rights, because of the competing interest of rights between individuals and state actors.
b. Religious Holidays as a Manifestation of Observance
The aim of this section is to examine two European regional cases to determine the European standard regarding holidays as a manifestation of FORB rights. Observance-based manifestation cases relating to holidays are sparse in ECHR case-law. However, Kosteski v. The Former Yugoslav Republic of Macedonia in 2006 provides a basis for putting the responsibility of protecting religious holidays on the employee and not the employer. Here, the applicant complains that he was fined for absence from work when he was celebrating a Muslim holiday. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as…religion.” For this case, however, the ECHR held that an employee must inform the employer of any religious holidays that would be taken in the near future. In Kosteski, the ECHR found no violation of Article 14 (prohibition of discrimination) in conjunction with Article 9, where the applicant breached disciplinary rules of his employer, the Electricity Company of Macedonia, by taking a day off of work to observe a public Muslim religious holiday without authorization. Kosteski was not fired, but did receive a 15% cut to his salary for three months. The ECHR states the following:
In the context of employment, with contracts setting out specific obligations and rights between employer and employee, the Court does not find it unreasonable that an employer may regard absence without permission or apparent justification as a disciplinary matter. Where the employee then seeks to rely on a particular exemption, it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation when that claim concerns a privilege or entitlement not commonly available….”
Here, Macedonian law provided that Muslims could take holidays, including the present holiday at issue. The court characterized Kosteski’s issue as a contractual obligation to inform the employer of a holiday, and justified the requirement as not disproportionate because it was prescribed by law and necessary in a democratic society for the protection of the rights of others. Therefore, there was no violation of Article 9 on its own. Nor was there a violation of Article 14 in conjunction with Article 9 insofar as the Kosteski’s claim that he was the only person of Muslim faith required to prove adherence to his religion, because the difference in treatment was considered justified as objective and reasonable. Therefore, where an applicant makes claim to a privilege or exemption he or she is not entitled to unless he or she is a member of the faith concerned, it is neither disproportionate nor unreasonable to require some level of showing to substantiate the claim.
The ECHR in Kosteski also referred to a 1996 European Commission of Human Rights (Hereafter “the Commission”) case, Konttinen v. Finland. Here, the applicant contracted to work with the State Railways in 1986, and joined the Seventh-day Adventist Church in Finland in 1991. Konttinen repeatedly left his job on Friday evenings in spite of his employer’s refusal. The Commission found that the employer’s dismissal of the applicant met the three requirements of the tripartite test. The applicant was held to have a duty as a civil servant to accept certain obligations towards his employer, including governing work hours. The Commission added that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regarded this as the ultimate guarantee of his right to freedom of religion. In sum, there is no indication that the applicant’s dismissal interfered with the exercise of his rights under Article 9 para. 1. Therefore, the dismissal by the employer was not a dismissal based on religious convictions, but rather a refusal to respect his working hours.
B. Domestic Law
The aim of this section is to determine what domestic law has been allowed under European regional law standards to persist in shaping FoRB in the workplace. While the ECHR has established some protections for FoRB within the workplace, the domestic legal systems of each European state has the ability to shape religious tolerance nationally. Some states have shown positive strides in furthering FoRB protection laws, while others have seemingly curbed their laws to limit religious tolerance, specifically regarding Islam. This section examines a mixture of domestic constitutional, employment, and contract laws in France, Greece, Italy, the United Kingdom, and Switzerland.
Article 1 of the French Constitution established a strict principle of separation of church and state, declaring France to be “secular” and ensuring “the equality of all citizens before the law without distinction of…religion.” This separation has resulted in an enforcement of strict neutrality of public services and public agents. Currently, this principle is not applicable to private sector employees not engaged in public services. The French Labor Code has codified these rights in the private sector, prohibiting direct or indirect discrimination based on religious grounds, including its use in job applications, working conditions, discipline, and dismissal. However, the French Supreme Court has carved out a possibility where private sector bans would be enforceable, under “certain circumstances” where the following three cumulative criteria were met: (1) The ban is justified by the nature of the tasks to be performed; (2) the ban responds to a determining and essential professional requirement; and (3) the ban is proportionate to the result searched.
Companies seeking to enforce the Corporate Pledge should be aware of particular sensitivities within the French population regarding the wearing of Islamic veils. Despite meeting the qualifications of a manifestation, the ECHR upheld a French ban of the full-face veil in a 2014 case, S.A.S. v. France, which penalized any clothing intended to conceal the face with a €150 fine. The ECHR held that this was not a violation of rights under Articles 8 (right to private and family life), 14 (prohibition of discrimination), or 9 of the Convention, emphasizing that “respect for the conditions of ‘living together’ was a legitimate aim for the measure at issue” within the given margin of appreciation.
The ECHR upheld another anti-Islamic veil case in 2015, Ebrahimian v. France, where a government hospital’s decision not to renew the contract of a hospital social worker because of her refusal to stop wearing a Muslim veil was held not to constitute a breach of Article 8 of the Convention. The ECHR held the French courts had not exceeded their margin of appreciation in finding no possibility of reconciling the applicant’s religious convictions with her obligation of neutrality in accordance with the secular character of the state and its policy of neutrality. It should be noted for private employers, however, that French case law holds that the wearing of a headscarf (unlike the full-face veil) is considered part of the individual freedom of dressing, and employers “cannot dismiss an employee solely because the headscarf causes trouble with other employees.”
Regarding religious holidays, French law does not require employers to accommodate to an employee’s religious beliefs. An employee seeking time off during the work day or wishing to take time off for religious reasons must seek the employer’s authorization in advance or risk discipline and/or dismissal. However, an employer’s refusal to authorize must not be based on religious reasons; refusal of religious holidays is allowed for employers so long as it is not for the “wrong reasons,” i.e. directly discrimination. Furthermore, some French employers have faced liability for indirect discrimination for systematic refusal of paid leave during religious holidays. Therefore, while France does not have religious accommodation requirements for holidays, the required justification on the part of employer actions for not allowing the employee to take a holiday performs similarly to a per se accommodation obligation.
Article 13 of the Greek Constitution established protections of FoRB for individuals, but expressly limits these rights under Art 13(2).
Article 13(2) – All known religions shall be free and their rites of worship shall be performed unhindered and under the protection of the law. The practice of rites of worship is not allowed to offend public order or the good usages. Proselytism is prohibited.
Although initially declaring broad religious freedoms, the Greek Constitution quickly narrows these rights to those that do not offend “public order or the good usages.” Additionally, it directly limits proselytism, but the ECHR has successfully tailored this prohibition back to only entail “improper proselytism” as defined in Larissis and Others v. Greece. The Greek Constitution, unlike the secular system of France, recognizes the Orthodox Church of Greece as the prevailing religion of Greece under Article 3. A further protection of FoRB rights, to the dismay of freedom of expression proponents, also includes Article 14, wherein seizures of publications are exceptionally allowed by order of the public prosecutor if an offence against the Christian or any other known religion is found.
Criticisms and concerns from the UN’s Human Rights Committee, which is the body that monitors implementation of the International Covenant on Civil and Political Rights, have particularly focused on Greek restrictions on freedom of association for ethnic groups, alternative service length for conscientious objectors of military service, Greek standards of living, and the rights of migrants, refugees and asylum-seekers. However, less attentions have been placed on FoRB protections within public schools for non-Orthodox students and in public for Muslims. Still, Greek law has made considerable strides to allow for more expansive religious rights, including Art 35 of Law 3448/2006 (permitting cremation whose religious convictions allow it), Law 3512/2006 (construction for a Mosque near the center of Athens), and the green-lighting of an inter-ministerial Task Force to map the presence of Muslims nationally to establish stable and open relations with the communities. Furthermore, there are no current bans on Islamic veils such as in France. The UN High Commissioner has recognized that it became increasingly difficult to employ people in Greece due to the economic crisis in 2008, and recommended the creation of specifically targeted programs to promote employment of refugees.
While no Greek case law regarding physical manifestation by wearing religious symbols was found, there were cases on forced manifestation that may indicate a right not to be obliged to manifest one’s FoRB. Alternatively, another positive case for FoRB manifestation protections in the Greek workplace includes Alexandridis v. Greece, wherein the ECHR recognized that the obligation to swear an oath in court proceedings violated a negative aspect of Art 9 FoRB protections under the Convention. This negative aspect was “the individual’s right to not to be obliged to manifest his or her religion…as to enable conclusions to be drawn regarding whether he or she held… such beliefs.” Assumingly, this right should be transferable to other relationships or partnerships, such as the employee-employer relationship. This decision was in despite of the applicant’s error in filling out the wrong form, which alternatively would have avoided the swearing in and taking office under an Orthodox Christian oath for legal positions. Similar results were handed down by the ECHR five years later in Dimitras & Others v. Greece, holding that Articles 218 and 220 of the Greek Code of Criminal Procedure are still in violation of Article 9’s negative manifestation protections and Article 13 (effective remedy). Despite these rulings from the ECHR, Greece appears to have continued to allow this specific violation to occur.
Regarding holidays and rest breaks in Greece, Greek employment law does address specific accommodations for the religious nature of some breaks. However, employees are entitled to no fewer than 15 minutes of break time after six hours of continuous work that cannot be taken at the beginning or end of the work shift. Sunday work is normally not allowed in Greece (until 6am on Mondays), except for in special circumstances. All employees are entitled to a minimum of four working weeks of paid annual leave, dependent on how long one’s work week is. Employees bear the responsibility of requesting leave with the employer two months prior, and employers must consult with employees over fixing the dates one to two months before the holiday. Additionally, anti-harassment and bullying regulations in the workplace may provide itself as a platform to further ensure religious holidays are not unfairly deprived from employees, wherein denial of holidays that exceed the limits set by “good faith,” “civil ethics,” or “the social and economic objective of the rights concerned,”.
Italian domestic law concerning religious beliefs originates from the Constitution of Italy under Articles 3 (Equality), 8 (Religion), and 19 (Freedom of Religion). Article 3(1) claims that all citizens are “equal before the law, without distinction as to…religion.” Article 8 also reemphasizes the equality of denominations, but Article 19 directly administers to manifestation, stating that “All shall be entitled to profess their religious beliefs freely in any form, individual or association, to promote them, and to celebrate their rites in public or in private, provided that they are not offensive to public morality.” Italian law does not define religion, but Legislative Decree n. 216 (2003) prohibits discrimination based on religion or beliefs, widening the scope of protection under Article 19 of the Italian Constitution. Dismissal on the grounds of religious affiliations are considered null and void under Italian law.
Italian society is beginning to take steps similar to France regarding Islamic veils, although this change is more focused on town-by-town decisions rather than large national decrees. Beginning in 2004, Italian towns in the north began to resurrect old laws banning masks as a reactionary response to terrorist attacks. These old laws ban face-covering veils such as the burqa, niqab, and the burqini.
A particularly large amount of legal dispute regarding symbols in the workplace have been in the negative aspect, particularly in public education systems. In Lautsi v. Italy, the Grand Chamber of the ECHR ruled in a 15-2 decision that the decision to display Christian crosses in public school classrooms falls within the margin of appreciation granted to States, and did not imply any compulsory teaching of religion in class, nor did it violate the rights of anyone involved. Thereby, with the ruling of Lautsi in place, displayed religious symbols in public workplaces might not violate FoRB rights, but certain individual FoRB manifestations may be limited.
No Italian laws specifically require an employer to accommodate an employee for time off to observe religious beliefs such as prayer or leave for religious celebration, but employees can take certain measures to protect their holidays. If a domestic court finds that the employer’s work rule is not justified, the behavior may be considered indirectly discriminatory. Additionally, an employee may immediately resign and terminate their employment contract under Sect. 2119 of the Italian Civil Code in specified circumstances, such as the refusal to grant holidays. The employer may determine a different date for an employee to take their vacation if it is incompatible with the requirements of the enterprise, but in principal the time of holiday is mostly chosen by the employee.
iv. The United Kingdom
Unlike our four other European states within this analysis, the Constitution of the United Kingdom is absent of a single document, or uncodified. Rather, the Constitutional values of the state are dispersed between multiple documents and other acts of the Parliament including, but not limited to, the Magna Carta (1215), Petition of Rights (1628), the Bill of Rights (1689), the Parliament Acts (1911-49), the Representation of the People Acts (1918) (amended), the European Communities Act (1972), the Scottish, Welsh, and Northern Ireland Devolution Acts of (1998) (amended), and the Human Rights Act (1998). Article 9 of the Human Rights Act protects freedom of thought, conscience and religion, and quotes Article 9 of the European Convention in its entirety in order to enact it under domestic law.
Specifically relating to FoRB rights, Parliament introduced the Equality Act (2010) to merge the Employment Equality (Religion or Belief) Regulations (2003) with other protective legislations. Two “Parts” from the Equality Act establish the UK standards for FoRB protections in the workplace, Parts 2 (Equality: key concepts) and 5 (Work). Part 2, Chapter 1lists religion or belief as a protected characteristic, defining religion as “any religion and a reference to religion includes a reference to a lack of religion,” and belief as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” FoRB rights are expressly deemed a protected class from direct and indirect discrimination under Chapter 2 (Prohibited Conduct) of the Equality Act. These protections are afforded to job candidates as well as employees that can show belonging to a particular group. However, indirect discrimination may still be justified by an employer if they can show that the policy is “a proportionate means of achieving a legitimate business aim.”
While Part 5 (work) of the Equality Act does not speak directly to religious discrimination in the workplace, an overwhelming amount of rules focus on the banning of discriminatory conduct between employers and employees. It seems likely that FoRB rights are protected within the confines of the UK workplace. Chapter 1 ¶39 (5) of Part 5 states that “a duty to make reasonable adjustments applies to an employer.” This line follows four other regulations preventing employer discrimination and victimization of employees. However, this protection should not be assumed to provide an overwhelming standard to accommodate religious beliefs.
Regarding the wearing of religious symbols in the UK, the ECHR’s ruling in Eweida is the most recent case. Limitations to religious symbols must meet the tripartite test of the Convention and be narrowly tailored for legitimate aims, such as in Ms. Chaplin’s scenario earlier where safety of patients and workers took precedence over her right to manifest within the setting of a hospital. There is no current ban on Islamic veils in public places besides a special exception allowing schools the capacity to decide if their dress code will permit such religious attire.
Religious holidays may be waivable by employers that enact a “no holiday” policy, particularly for businesses that require large labor increases to meet seasonal needs. These means would be viewed by the courts as indirect discrimination. However, the employer can be excused if they show that the act is proportionate by having explored other, less discriminatory means of achieving its aims as a business. Seasonal businesses showing large orders can often meet this low bar with a “no-holiday” policy.
Freedom from religious discrimination is protected in the Federal Constitution of the Swiss Confederation under the Equality Clause, Article 8, stating that “No person may be discriminated against, in particular on grounds of … religious… convictions.” Likewise, Article 15 specifically speaks to religious freedoms, guaranteeing freedom of religion and conscience and the ability to profess those convictions alone or in community. However, under Article 72, the relation between church and the state is left to be decided by each individual canton (Swiss states), allowing them to take measures to preserve “public peace between the members of different religious communities.” Additionally, Article 72(3) was included in 2009, enforcing a federal ban on the construction of all Mosque minarets, not including the four existing mosques with minarets. “New Mosques may be built without minarets.”
Swiss labor law is not codified into one general act that covers discrimination in the workplace, but can be found in a number of federal ordinances, collective agreements, and standard contracts. Private sector employment contracts are governed by Articles 319-362 of the Code of Obligations. Specifically, protection from religious discrimination in the workplace can be inferred from rights codified in Articles 328, 336, and 337 of the Code of Obligations. Article 328 states that employees can claim discrimination on the basis of religion. And an employee affected by such discriminatory behavior may choose to refuse to work, reject instructions, and seek claims for damages and/or tort. Further protections for FoRB rights in the workplace can be inferred under Article 28 of the Swiss Civil Code and under the duty to act in good faith under Article 2. Public sector employees are afforded less protections, but may still rely on the Equality Clause of the Swiss Constitution. Additionally, some cantonal constitutions include prohibitions against discrimination.
Some Swiss courts have been supportive of religious manifestation via basic Islamic headscarves that do not cover the face. On March 5, 2014, the Rheintal district court acquitted the parents of a Muslim girl who violated the cantonal education law after their daughter refused to go to school without a headscarf, despite the school’s headscarf ban. The acquittal was justified under the constitutional guarantee of freedom of faith and conscience. However, this result should be tempered by the case of Dahlab v. Switzerland, the ECHR held that measures to limit a grade-school teacher from wearing an Islamic veil were not considered unreasonable.
Despite some cantonal court decisions in favor of the wearing of Islamic headscarves, Swiss lawmakers overwhelmingly voted in favor of banning the use of burqas in November 2015, which included an equivalent of a £6,500 fine, an incredibly high fine when compared to France’s €150 fine. This law affects domestic workers as well as foreign workers within Switzerland. Surprisingly, this decision comes only three years after the lower house of the Swiss Parliament voted down a proposal to ban the wearing of face-covering veils in public. Within the research for this paper, no other restrictions on religious symbolic manifestation were found in Switzerland besides the aforementioned bans on Islamic veils. According to U.S. governmental demographics, 95% of Muslims in Switzerland are of foreign origin, meaning that such bans could be reactionary to state fears regarding Islamic extremism.
Religious holidays vary from canton to canton, and depend on what is the dominant religion in the area, but the government observes eight religious holidays as national holidays: Good Friday, Easter, Easter Monday, Ascension, Whit Sunday, Whit Monday, Christmas Day, and St. Stephen’s Day. Sunday is considered a public holiday, meaning that shops are closed and work is generally not allowed without special permission, usually reserved for essential occupations. Articles 20(a)(2) and 20(a)(3) of the Federal Labour Statute of 1964 protects religious activities at times other than officially recognized holidays of the State. Though, these special absences are not regarded as working hours. Rather, they are viewed as “extraordinary leisure time,” and the employee is not entitled to wages during their absence unless labor agreements state otherwise. The justified absent employee may also be required to make up the missed working hours. However, only a three-day advance notice is required. Employers are required to grant such excusals if they are “practicable,” meaning that the right is not unlimited and is reasonable. In other words, unofficial religious holidays must not be to the extreme detriment of the employer, but sincere religious requests are to be treated benevolently by employers.
C. International Law
The purpose of this section is to develop an understanding of international FoRB standards as defined by treaties, and significant interpretations by UN and other international actors. The international standard for FoRB stems directly from the Universal Declaration of Human Rights (hereafter UDHR) Article 18 in 1948. The ICCPR would later indoctrinate these rights under its Article 18 with its entry into force in 1976. These rights were further developed under the International Labour Organization Convention No. 111, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion of Belief, the Human Rights Committee General Comment 22, and the UN Special Rapporteur on freedom of religion or belief’s Digest on Freedom of Religion or Belief. This section briefly overviews the standard for FoRB rights under international treaties, interpretations, and obligations originating from the United Nations. Then, this section compares European regional legal standards to the international legal standard, addressing both potential short-comings of the law and reasons as to why those shortcomings may be developing.
i. Overview of International FoRB Obligations and Interpretations
The ICCPR is the foundational document for the interpretation of international standards regarding FoRB rights. It expanded upon the rights first articulated in the UDHR concerning religious freedom, while also providing further protections from coercion that would impair religious freedom, providing a format for limiting FoRB rights, protecting the rights of parents to ensure the religious and moral education of their children, and offering a few minor grammatical changes. As you are aware, Article 18 establishes basic FoRB rights and protections, with Article 18(2) providing acceptable limitations to manifestations. Other articles within the ICCPR also provide basic protections to religious freedom, including Articles 2, (respect for all individuals), 26 (anti-discrimination), and 27 (rights of minorities).
Predating the ICCPR, however, was the International Labour Organization’s Convention No. 111 adopted during its forty-second session in 1958. This convention specifically targeted discrimination in respect to employment and occupation, and included protections against “any distinction, exclusion or preference made on the basis of … religion… which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.” These values were later instilled in the ICCPR.
The 1981 Declaration the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief reaffirmed FoRB rights protected under the ICCPR, wherein Article 1(1) protects an individual’s right to thought, conscience and religion and the ability to manifest those beliefs, and Article 1(3) acts as the restricting clause with similar restrictions as the ICCPR’s Article 18(3). The 1981 Declaration also specifically includes in Article 6(h) the right “to observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief.”
The Human Rights Committee adopted General Comment 22 (hereafter Comment 22) in 1993 to further interpret individual FoRB rights under Article 18 of the ICCPR. Comment 22 finds that the terms “religion” and belief” under Article 18 should be broadly construed to prevent discrimination against any religion or belief for any reason that does not meet the narrowly tailored limitations under Article 18(3). Regarding manifestation, Comment 22 elaborates on the four forms of manifestation, stating the following on worship and observance:
The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group.
Although Comment 22 is just an interpretation of the ICCPR, it provides a solid understanding of how FoRB is interpreted, or attempting to be interpreted, by UN officials. Comment 22 does recognize the permission of restrictions on manifestation, but observes that these restrictions in Article 18(3) is to be “strictly interpreted,” meaning that restrictions are not allowed on grounds not specified to the article, even if another article would allow such restrictions to be held. Furthermore, any restrictions based on morals must be based on principles not deriving from a single tradition. Likewise, the Human Rights Committee has stated that Article 18(2) of the ICCPR (prohibition of coercion) may be viewed as having the same protective effect in employment law where restrictive measures might impair the right to have or adopt a religion or belief.
UN Special Rapporteur Digest on Freedom of Religion or Belief (hereafter “the Digest”) stands as a thorough interpretation of international standards, compiling excerpts of four different individuals who held the position of special rapporteur for FoRB from 1986 to 2011. The Digest specifically contains the Special Rapporteur’s interpretation of the role of religious symbols as a form of manifestation under international law. The special rapporteurs emphasized two cases that went before the Human Rights Committee. In Hudoyberganova v. Uzbekistan a female Muslim student at a state institute was suspended for wearing a headscarf. The majority of the Committee concluded in Hudoyberganova that the state failed to provide justification for its actions and therefore was a violation of Article 18(2) of the Covenant. However, in Bhinder v. Canada, the Committee found that the requirement for Sikhs to wear safety headgear during work was justified as an Article 18(3) limitation. Nor was any de facto discrimination under Article 26 of the Convention was concluded, since the requirements were considered reasonable and directed towards objective purposes compatible with the Covenant.
Regarding religious holidays, the Digest offers a few excerpts from 25 years of mandated reporting practices from specific countries. In a 1996 report, Pakistan began offering Christian employees time off after 11am for prayer and optional holidays, granted liberally to accommodate. Additionally, a 2002 report showed that Argentina provided specific legal action to grant religious holidays, allowing exemptions on religious grounds in schools and paid leave for employees.
ii. Comparing the European and International FoRB Standards
In comparing the aforementioned information regarding European and international standards protecting FoRB rights, a gap between the two laws is increasingly recognizable, particularly in regards to manifestation via the wearing of religious symbols. The ECHR appears to be caving to the majority by allowing states to abuse the balancing test. Deference to states under a recognized margin of appreciation falls within the Covenant’s legal limitations, but once-narrow interpretations of these limitations are increasingly being broadened by the ECHR’s unwillingness to pushback too hard on state decisions. This result of this is that human rights are unable to protect the individuals of the minority populations, and reinforce the dominance of the majority population’s FoRB rights. Human rights are designed to protect those who more often than not do not share the same values as the majority of the population. Likewise, limitations are supposed to be narrowly tailored to prevent overly-broad restrictions on the population which would disproportionally affect certain groups. The ECHR’s expansion of the role of the margin of appreciation in European regional law is causing a lowering of the bar away from the international standard as described by treaties, special rapporteurs, and international case-law.
Assumingly, there may be an underlying fear that if ECHR holdings are too restrictive on state decisions, then states would be more likely to abandon the ECHR and EU than they would have been in previous decades. When the European Union’s economy was on the rise, requirements to adhere to the ECHR rulings and the Convention might have had more influence to shape domestic human rights law because of the economic leverage. However, with economic turmoil stemming from 2008 and states threatening to leave the EU, political power to apply exogenous change to domestic human rights laws has weakened. This means that the ECHR must act cautiously, not to push for too much against majority interests within these states, or domestic forces could call for abandonment of the EU.
The aforementioned thought might explain why most cases upholding domestic limitations against FoRB have been against minorities. In particular, most European restrictions have been aimed at Islamic manifestations, while Christian manifestations often seem to require a higher level of justification. France, Switzerland, and Italy are three of many European states banning Islamic veils in the workplace and in public. Such laws are not allowed under international FoRB standards without serious justification. Enforcing a “secular society” policy or “respect for the conditions of living together” is unacceptable under international standards, finding solace only in inappropriately and broadly construed interpretations of FoRB limitations.
There is legitimate reason for concerns regarding the European forum of FoRB rights delineated from international standards. The ECHR is the world’s oldest and most prestigious human rights judicial body, with powerful political capital to develop and interpret human rights far beyond the European sphere. The ECHR also boasts a vast library of case law much greater than other regional or international judicial or quasi-judicial bodies. Inaction to bring European standards up to the promoted international interpretations of law could result in a decline of international standards, permitting further restrictions by authoritarian regimes or states with a specific religious majority to restrict the rights of religious minority populations.
Distinct differences in allowable manifestation of one’s religion or beliefs have been found between the European and international standards. While international standards give more preference and protection to religious freedom, European standards have systematically lowered this standard through deference to domestic courts that may already have restrictive laws in place on wearing religious symbols or taking religious holidays. International and European regional standards regarding religious holidays appear to be at least closer in similarity than standards regarding the wearing religious symbols.
This memo does not discuss the subject in length, but a rising trend of anti-Islamic action appears to be emerging in European human rights law. Recognizably, the past five years have seen large waves of immigrants from the Middle East. Additionally, recent terrorist attacks in Paris, France in 2015 and Brussels, Belgium in 2016 have undoubtedly increased tensions in Europe. A large amount of FoRB limitations in European domestic laws are aimed at Islamic manifestations of religion. Future studies on current trends against Islamic manifestations of FoRB in Europe could prove beneficial to develop clearer understandings to better protect FoRB.
Where local or regional law does not meet the standard of the Four Guiding Principles, it is important to advise employers that following regional standards could put employees in jeopardy. For instance, Air France’s flights to Iran are now very difficult for female flight attendants. In France, flight attendants are banned from wearing face-covering veils, but in Iran, they may be required to wear them. This puts employees in a very difficult situation.
IV. CONCLUSION AND RECOMMENDATIONS
The following two recommendations are designed to aid the Religious Freedom and Business Foundation when advising employers. First, the inclusion of the word “manifest,” along with the four forms of manifestation (worship, teaching, practice, and observance) in the Corporate Pledge would further strengthen the document by reinforcing international interpretations. The inclusion of “manifest” ties the document closer to international law, and addresses any concerns that company policies may only be addressing forum internum, rather than forum externum FoRB rights. This addition would prevent companies from claiming that the Corporate Pledge is only applicable to forum internum, closing any potential loopholes for companies to not fully recognize FoRB in accordance to the goals of the Corporate Pledge.
Second, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion of Belief’s Article 6(h) should be used to further define and protect an employee’s right to religious holidays. It is a rare assertion that directly speaks to religious holidays within the context of FoRB as a guaranteed protection. Article 6(h) should be prominently displayed on the foundation’s website as a legitimate international source protecting religious holidays, and could act as a potential building block for future growth in the area. Employers should be informed on the standard and seek to conform to it.
APPENDIX 1 [Cases]
- Alexandridis v. Greece
- Bhinder v. Canada
- Bulut v. Turkey
- Dahlab v. Switzerland
- Dimitras & Others v. Greece
- Ebrahimian v. France
- Eweida and Others v. the United Kingdom
- Hudoyberganova v. Uzbekistan
- Karaduman v. Turkey
- Konttinen v. Finland
- Kosteski v. The Former Yugoslav Republic of Macedonia
- Larissis and Others v. Greece
- Lautsi v. Italy
- Pichon and Sajous v. France
- Refah Partisi and Others v. Turkey
- Sahin v. Turkey
- S.A.S. v. France
 European Convention on Human Rights art. 9, Nov. 4 1950.
 Council of Europe, Treaty Portal, coe.int, available at http://www.coe.int/en/web/conventions(last visited April 24, 2016).
 European Court of Human Rights’ Research Division, Overview of the Court’s Case-Law on Freedom of Religion, (2031) ¶8, available here.
 Id. at ¶¶16-19.
 European Convention on Human Rights, supra.
 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion of Belief, G.A. Res. 36/55, UN Doc. A/RES/36/55 (Nov. 25 1981), ¶6(a)-(h).
 Eweida v. United Kingdom, 2013-I Eur. Ct. H.R. 215(2013), ¶16, available at http://hudoc.echr.coe.int/eng?i=001-115881.
 Id. at ¶82.
 Pichon & Sajous v. France, 2001-X Eur. Ct. H.R. 898 (2001).
 Eweida, supra note 11.
 Id. at “The Law,” ¶4.
 European Court of Human Rights’ Research Division. supra note 4, at ¶46.
 Eweida, supra note 11, at ¶84.
 Steven Greer, The Margin of Appreciation: Interpretation and Discretion Under the European Convention on Human Rights, Council of Eur., p. 5, link.
 Eweida, supra note 11.
 Id. at ¶91.
 See European Court of Human Rights’ Research Division supra note 4, at ¶48. (It is worth noting that in the case of Eweida, two factors of the balancing test including the employer’s allowance of other employees to wear turbans, hijabs, and other religious wear, and the employer amended the uniform code to allow visible wearing of religious symbols demonstrated that the earlier prohibition held no crucial significance.)
 Eweida, supra note 11, at ¶98.
 Id. at ¶94.
 Previous ECHR case law has frequently deferred to domestic limitations of FoRB in three specific circumstances. These include educational environments with young children, military, and organizations with religious ethos.
 Julie Maher, Proportionality analysis after Eweida and Others v. UK: Examining the Connections between Articles 9 and 10 of the ECHR, Oxford Human Rights Hub (2013), available here.
 Kosteski v. “The Former Yugoslav Republic of Macedonia”, no. 55170/00, 2006 Eur. Ct. H.R., (2006), ¶¶8-9.
 European Convention on Human Rights, supra at Art. 14.
 Id. at ¶39.
 Id. (The Court did not go into detail as to the tripartite analysis. Rather, it was mentioned at the end of the analysis to provide additional justification.)
 Id. at ¶44.
 Id. at ¶46.
 Id. at ¶37.
 Id. Citing Konttinen v. Finland, App. No. 24949/94 1996 Y.B Eur. Conv. ¶37, (Eur. Comm’n on H.R.).
 1958 Const. 1 (Fr.), available at legislationline.org. (France’s fifth and current constitution was crafted by Charles de Gaulle with the creation of the Fifth Republic in 1958. http://www.bonjourlafrance.com/france-history/fifth-republic.htm.)
 Robbin Hutton and Kathryn Pascover, Religion, Holidays and Days off in the Global Workplace, Global HR Lawyers Ius Laboris (April 24, 2016, 10:57 AM), link.
. Charles Dauthier and Sabine Smith-Vidal, Can French Employees Wear Unrestricted Religious Symbols in the Workplace?, Morgan. Lewis & Bockius LLP (April 24, 2016, 11:00 AM), link.
 European Court upholds French full veil ban, BBC (Jul. 1, 2014), http://www.bbc.com/news/world-europe-28106900.
 Press Release, Eur. Ct. on H.R Registrar of the Court 191, French ban on the wearing in public of clothing designed to conceal one’s face does not breach the Convention (2014).
 Factsheet – Work-related Rights, Ebrahimian v. France, Eur. Ct. H.R, p. 7 (2016). See also Eva Brems, Ebrahimian v France: headscarf ban upheld for entire public sector, Strasbourg Observers, available here.
 Hutton et al, supra note 38.
 1975 Const. 13 (Greece), available here.
 Larissis et al v. Greece, nos. 140/1996/759/958960 Eur. Ct. on H.R. (1998). (The Court found the act of proselytism by two highly ranked military airmen to convert civilians was not to be considered improper proselytism under Art 13(2) of the Greek Constitution, and therefore the actions of the state were a violation of their Art 9 FoRB rights. However, the act of the two airmen and another airman to proselytize to lower-ranking military airmen was deemed improper proselytism by the ECHR, because they were subject to pressures and constraints within a rigid hierarchical system. The State’s response was considered proportional, and no violation of Article 9 was found concerning the second instance.) See also Kokkinakis v. Greece, no. 3/1992/348/421 Y.B Eur. Conv. (1993).
 Supra note 51, at art. 14.
 UN Human Rights Council Working Group on the Universal Periodic Review, Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15(b) of the annex of the Human Rights Council resolution 5/1 Greece, 5. Freedom of religion or belief, expression, association and peaceful assembly, and right to participate in public and political life, A/HRC/WG.6/11/GRC/2, (2011).
 Gay McDougall, A/HRC10/11/Add.3, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, UN Gen. Assembly, (2009).
 The UN Refugee Agency, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review – GREECE, 12 (2010), available here.
 Alexandridis v. Greece, app. no. 19516/06 Eur. Ct. on H.R. (2008), pp.2-3.
 Frank Cranmer, “Oaths, the Greek judicial system and Article 9,” Law & Religion UK, (Jan. 10 2013), available here.
 Id. citing Dimitras et al. v. Greece (No.3) 44077/09 HEJUD, 2013 Eur. Ct. on H.R. 18.
 Christos A Ioannou, XpertHR International Manual 6909 (2015) Greece: Employee Rights, Lexis.
 1947 Const. 3, 8, 19, (It.).
 Id. at art. 3.
 Id. at arts. 8, 19 (emphasis added).
 Hutton et al, supra note 38.
 Aldo de Matteis, Paola Accardo, and Giovanni Mammone, National Labour Law Profile: Italy, International Labour Organization available here (last visited April 25, 2016 3:51 AM).
 The Islamic veil across Europe, BBC News (Jul. 1 2014), available here.
 A Test of Faith?: Religious Diversity and Accommodation in the European Workplace, Ch. 4: Beyond Lautsi: An alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace by Hans-Martien ten Napel, pp. 87-102, Citing Lautsi v. Italy, no. 30814/06 Eur. Ct. on H.R. (2011).
 Hutton et al, supra note 38.
 Matteis et al, supra note 71.
 Robert Blackburn, Britain’s unwritten constitution, The British Library, link (last visited Apr 25, 2016).
 Human Rights Act 1998, 1998 Chapter 42 (U.K), available here.
 Equality Act 2010, 2010 Chapter 15 (U.K), available here.
 Id. at Part 2 Equality: key concepts, § 10.
 Id. at Chapter 2.
 Hutton et al, supra note 38.
 Equality Act 2010, supra note 81.
 Hutton et al, supra note 38.
 Eweida, supra note 11.
 BBC News, supra note 72.
 Hutton et al, supra note 38.
 1999 Const. 8, (Switz.) available here.
 Id. at art. 15.
 Id. at art. 72.
 Id. See also Switzerland 2012 International Religious Freedom Report, p.4, state.gov.; (Dictionary.com defines a minaret is a lofty, often slender, tower or turret attached to a mosque, surrounded by or furnished with one or more balconies, from which the muezzin calls the people to prayer. available here.
 U.S. Dept. of St., 2014 Report on International Religious Freedom – Switzerland, Section II. available here.
 Neils Peterson and Angelika Muller, National labour law profile: The Swiss Confederation, International Labour Organization, available here.
 Obligationenrecht [Code of Obligations] (1911), Fed. Act on the Amendment of the Swiss Civ. Code, available here.
 Balz Gross, Peter Müller and Nina Rabaeus, Employment and employee benefits in Switzerland: overview, Practical Law (2015) available here.
 Schweizerisches Zivilgesetzbuch [Swiss Civil Code] (1907), SR 210, available here.
 Obligationenrecht, supra note 101.
 U.S. Dept. of St., supra note 98.
 Factsheet – Religious symbols and clothing, Dahlab v. Switzerland (2001), Eur. Ct. H.R, p. 3. (2016).
 Oli Smith, Switzerland overwhelmingly votes for burqa ban with £6,500 fine for Muslim women who rebel, Daily Express World RSS (2015), link (last visited Apr 25, 2016).
 Constance Johnson, Global Legal Monitor Switzerland: Burqa Ban Voted Down (2012), link (last visited Apr 25, 2016).
 U.S. Dept. of St., supra note 98 at section I.
 U.S. Dept. of St., International Religious Freedom Report for 2011 – Switzerland, available here.
 Marcel Stüssi, Models of religious freedom: Switzerland, the United States, and Syria by analytical, methodological, and eclectic representation, 1880-190 (2012).
Universal Declaration of Human Rights art. 18, Dec. 10, 1948, U.N.T.S. 217A.
 International Covenant on Civil and Political Rights (ICCPR) art. 18, Dec. 16, 1966, 999 UNTS 171, 1057 UNTS 407.
 Id. at arts. 2, 26 & 27.
 International Labour Organization Convention (No. 111) concerning discrimination in respect of employment and occupation, Jun. 25, 1958, 42 Ses. available here.
 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion of Belief, supra note 10 at art. 1.
 Id. at Art 6(h).
 UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), Jul. 30 1993, CCPR/C/21/Rev.1/Add.4 ¶2, available here [accessed 26 April 2016].
 Id. at ¶4.
 Id. at ¶8.
 International Standard – I1: Freedom of Religion or Belief, UN Human Rights Office of the High Comm’r, ¶50, available here.
 Heiner Bielefedt, Rapporteur’s Digest on Freedom of Religion or Belief: Excerpts of the Reports from 1986 to 2011 by the Special Rapporteur on Freedom of Religion or Belief Arranged by Topic of the Framework for Communications, ¶44, 2011. Citing Hudoyberganova v. Uzbekistan, Communication No 931/2000, UN Doc CCPR/C/82/D/931/2000, (2004) 12 IHRR 345, IHRL 1714 (UNHRC 2004), Nov. 5, 2004, Human Rights Committee [UNHRC].
 Id. Citing Bhinder v. Canada, Communication No. 208/1986, UN Doc A/45/40 vol2. (1990) Human Rights Committee [UNHRC].
 Id. at 28.
 Id. at 29.
 Liam Stack, Air France Backlash Over Veil Policy on Route to Iran, the New York Times (Apr. 5, 2016) available here.