European Labour Law
This ongoing series examines issues in European law related to freedom of religion or belief in the workplace.
(1) Religious freedom standards in the European workplace
by Ahrens G. Kerwood
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.
(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?
(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.
(2) Recommendations and Review of the Corporate Pledge in Light of European Law
As part of collaborative research between the Religious Freedom & Business Foundation and University of Oklahoma College of Law, Ryan Anderson looked at the legal protections for religious non-discrimination in the workplace in Europe.
Anderson 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.
Does international law and domestic law in four European countries fall short of the standards set forth in the Religious Freedom and Business Foundation Corporate Pledge? If so, what changes to the Pledge or your Foundation’s website could be made to fill this gap?
Freedom of religion laws in the Netherlands, Germany, Spain, and Belgium, do not meet the standards provided in the Religious Freedom and Business Foundation Corporate Pledge (“the Pledge”).1 Similarly, international law also falls short of the standards set forth in the Pledge. There are several reasons why there is a gap between the Pledge and international, or local domestic law in these countries. Therefore, companies signed to the Pledge will likely violate the provisions of the Pledge.
First, some countries have under-inclusive interpretations of “religion or belief.” This leads to inconsistent protection across borders, and is discussed in Section III. Second, there are no “explicit” requirements in international or the relevant domestic laws that require employers to make reasonable accommodations for religious purposes. This is discussed in Section IV. Section V discusses how neutral company policies are treated differently within domestic and international law. This has led to a dramatic increase in the frequency of cases involving “neutral” policies that are intended to promote the “company’s image,” but result in a disproportionately negative effect on some people. Adopting the Human Rights Committee interpretation of “religion” and “belief” set forth in General Comment No. 22, will provide clear guidance to companies, and allow those companies to provide their employees with consistent protection throughout the world. Annex A, immediately following this memorandum, includes a brief summary of the general workplace religious freedom laws in each of these countries.
(3) Is freedom of religion or belief in the workplace really protected by the European Court of Human Rights?
On the occasion of Human Rights Day 2014 (Dec. 10), the Religious Freedom & Business Foundation (RFBF) is pleased to release the first in a series of articles by RFBF Research Fellow Rebeca Vázquez Gómez studying the balance between workers’ religious freedom and company’s interests at the European Court of Human Rights.
The European Court of Human Rights has consistently put the burden of proof on religious believers rather than their employers for respect of their faith practices in their work life. Instead of making affirmative protections, the European Court of Human Rights has consistently forced religious believers to resign rather than requiring their employers to respect their faith practices in the workplace.
Instead of promoting reasonable accommodations of religious freedom at the workplace, the Court strongly protects the employer and challenges the employees to choose between resigning or waive the exercise of their beliefs. A number of the difficulties employees face in exercising their right to religious freedom in the workplace arise when the work schedule established by the employer creates an obstacle for the employee to observe his or her religious duties of rest or prayer on specific days or hours.
The European Court of Human Rights (ECtHR) is the preeminent legal voice on the protection of human rights in Europe (not just the European Union). Its resolutions serve as an important guide to the different European legal systems. It is therefore important to understand how it protects (or does not protect) freedom of religion or belief in the workplace.