RELIGIOUS DISCRIMINATION

 

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion.

 

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Religious Discrimination & Harassment

It is illegal to harass a person because of his or her religion.

Harassment can include, for example, offensive remarks about a person's religious beliefs or practices. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Religious Discrimination and Segregation

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference.

Religious Discrimination & Reasonable Accommodation

The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Who’s protected in the workplace? The short answer is, everyone. Employees are protected by the Equality Act 2010, regardless of:

·      Their own religion, belief, or non-belief. Smaller religions and sects are included.

·      Their employer’s religion, belief, or non-belief

·      Whether they’re already employed, or applying for a job

Sometimes, an employee may only be perceived to be of a certain religion — e.g., their employer or colleague believes they ‘look Rastafarian’ — when in fact they aren’t. In such cases, the employee is still protected against discrimination committed against them.

 

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Religious Accommodation/Dress & Grooming Policies

Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee's observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

Religious Discrimination & Reasonable Accommodation & Undue Hardship

An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Religious Discrimination And Employment Policies/Practices

vv An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment.

Direct religious discrimination

Direct religious discrimination is when an employer treats someone less favourably than other employees because of their religion.

The plainest form of direct discrimination is when an employer takes an unfair action against an employee based on their religion. Typical examples include:

·      Dismissing an employee because of their religion

·      Deciding not to hire an applicant because of their religion

·      Refusing to develop or promote an employee because of their religion

·      Paying an employee less because of their religion

However, employers are also responsible for forms of direct religious discrimination committed by their employees.

Harassment

Bullying an employee at work because of their religion is another form of direct discrimination, usually known as harassment. The harasser can be the employer, or the victim’s colleague.

Any behaviour that the employee finds distressing, humiliating, or offensive can be considered harassment at employment tribunal — whether it is intentional or unintentional.

Victimisation

Employees who are treated unfairly because of their religion have a right to complain, raise a grievance, or make a claim at an employment tribunal. Yet in many cases, this leads to further ill-treatment from their employer or colleagues. The employee might be ignored, denied opportunities, or unfairly disciplined for speaking out.

Such actions constitute victimisation, another form of direct discrimination that is illegal under the Equality Act.

Indirect religious discrimination

Indirect religious discrimination is when an employer sets rules that apply to everyone, but which unfairly disadvantage employees with certain religions or beliefs.

For example, an employer might indirectly discriminate by:

·      Requiring a dress code that excludes people who wear items of clothing as part of their faith

·      \Unfairly setting work schedules that prevent employees taking time off for religious observance

·      Unfairly banning wearing certain religious items, such as the symbolic bracelet worn by Sikh men

The key word above is ‘unfairly’. It’s lawful to have rules in the workplace, even those that may unintentionally exclude certain faiths — so long as they are reasonable and justifiable

Here is a case study on how people face discrimination.

. Achbita v G4S Secure Solutions NV: the employee, Ms Achbita, a Muslim, was employed by G4S in 2003 as a receptionist working in Belgium. For the first three years of her employment, Ms Achbita wore a headscarf only outside of working hours and not whilst she was on duty.  However, in April 2006, Ms Achbita announced that for religious reasons she intended to wear a headscarf whilst on duty as well as outside of working hours. G4S pointed out that was at odds with the religious and ideological neutrality sought under an unwritten company policy. This policy of neutrality was crucial to G4S because of the variety of their customers and because of the special nature of their work characterised by constant face to face contact with external individuals.

With effect from 13 June 2006, it was incorporated into the G4S Employee Code of Conduct that ’employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them’.

Ms Achitba continued to wear her headscarf to work and was dismissed on 12 June 2006 because of her firm intention as a Muslim woman to wear the Islamic headscarf.

Ms Achtiba brought an action for damages for wrongful dismissal and/or discrimination against G4S. The Belgium Labour Court held that there had been no direct or indirect discrimination and that decision was upheld on appeal. During the course of a further appeal, the Belgian Supreme Court stayed the proceedings and referred a preliminary question to the CJEU, asking whether the headscarf ban amounted to direct discrimination under the Directive, where the dress code prohibited all employees from wearing outward signs of political, philosophical and religious beliefs at work.

Advocate General Kokott gave her Opinion that the dress code which included the headscarf ban did not amount to direct discrimination based on religion or belief. G4S’s ban was a blanket ban, which applied to all religions equally and had been implemented consistently. There was also an element of neutrality because the rule applied to political and philosophical beliefs, not just religious ones.  The only difference in treatment was between employees who wished to actively express a particular belief and those who did not. This did not constitute less favourable treatment that was directly and specifically linked to religion. In terms of indirect discrimination, such a rule was capable of justification in that G4S wanted to create an image of religious and ideological neutrality

 

although useful guidance, contrary to some media reports, these CJEU decisions don’t mean that you can always ban religious symbols, so long as your ban covers all religions and beliefs. 

Employers are instead left in the very difficult position of determining where the courts may draw the line between acceptable, and unacceptable, dress codes.  Inevitably cases will turn on their own particular facts. The central issue in most cases will be justification – whether the employer had a legitimate aim and whether the ban was proportionate.  For example, in the case of Eweida and others v United Kingdom (see our January 2013 case update available here), British Airways (BA) refused to allow an employee to wear a visible cross. The European Court of Human Rights indicated that BA’s desire to project a certain corporate image was a legitimate aim; but nonetheless found that its ban was disproportionate as there was no evidence that the wearing of items such as turbans and hijabs by other employees had any negative impact on BA’s brand.

Employers need to ensure a balance between the reason for any dress code and the disadvantage likely to be suffered by an employee. We recommend that you continue to consider your dress code or appearance policies carefully and treat employees’ requests to circumvent a rule for religious reasons sensitively and respectfully.

A difference in treatment may be lawful in employment situations if:

• belonging to a particular religion is essential for the job: this is called an occupational requirement. For example: a prison chaplain serving Methodist prisoners may need to be a member of that faith
• an organisation is taking positive action to encourage or develop a group of people with a religion or belief that is under-represented or disadvantaged in a role or activity
• a faith school appoints some of their teaching staff on the basis of their religion
• an organisation with an ethos based on religion or belief is restricting a job opportunity to people of their religion or belief. For example, a Humanist organisation which promotes Humanist principles and beliefs could specify that their Chief Executive must be a Humanist. However restricting a job opportunity to people of a certain religion or belief is not lawful unless the nature or context of the work demands it
• the circumstances fall under one of the other exceptions to the Equality Act that allow employers to provide different treatment or services based on religion or belief

A difference in treatment may be lawful in situations outside the workplace such as if:

• a faith school is using religious criteria to give priority in admissions to children from a particular religion.
• a religious or belief organisation is restricting its membership or participation in its activities, or the provision of goods, facilities and services to persons of a particular religion or belief. This only applies to organisations whose purpose is to practice, promote or teach a religion or belief, whose sole or main purpose is not commercial. A restriction can only be imposed:
• if the purpose of the organisation is to provide services to one religion or belief
• if it is necessary to avoid causing offence to persons with the same religion or belief as the organisation
• an organisation is taking positive action to encourage or develop a group of people with a religion and belief that is under-represented or disadvantaged in an activity
• the circumstances fall under one of the other exceptions to the Equality Act that allow organisations to provide different treatment or services based on religion or belief

If you believe you have been discriminated against you can check in one of our codes of practice to see whether any other exceptions apply.

In their everyday life, many members of religious or belief communities face discrimination based on their religion or belief. They are unduly restricted in the enjoyment of their civil, cultural, economic, political and social rights. As such, members of certain religious or belief communities suffer discrimination in their access to public education, health services or public posts. In extreme cases, some of them are also arrested or killed due to their religious affiliation. 

The United Nations has been concerned with this issue since its foundation and the prohibition of religious discrimination is enshrined in all core international human rights treaties. In this regard, States have the duty to refrain from discriminating against individuals or groups based on their religion and belief (obligation to respect); they are required to prevent such discrimination, including from non-State actors (obligation to protect); and must take steps to ensure that, in practice, every person in their territory enjoys all human rights without discrimination of any kind (obligation to fulfil).

Key Takeaways

• Religious discrimination is the adverse work treatment of an individual based on religious beliefs or practices.
• Title VII of the Civil Rights Act of 1964 prevents employers from discriminating based on religion.
• Employers cannot hire, fire, or make an employee's work conditional on religious beliefs or practices, nor can they retaliate against someone for pointing out religious discrimination.
• The Act also requires employers to make reasonable accommodations for employees to practice their faith, including permitting head coverings and time for prayers, if it can be done without undue hardship.

 

 

Remember, if you do not offer an applicant the role due to their religion or belief, you leave yourself vulnerable to Employment Tribunals claims. Learn some tips to tackle unconscious bias during the recruitment process here.

 by KRATI GUPTA