“Reasonable Accommodation of Religion in the Workplace: Principles from ECHR and USSC Case Law”
Researcher: Juan Martin Vives
Abstract: Religious demography is rapidly changing around the globe, leading to unprecedented religious diversity. In North America, Muslims and others religious minorities have the biggest growing rates in their numbers. According to the latest projections, by 2050 Muslims will make up 2.1% of the Unites States population, while followers of 'other religions' are expected to be 1.5% of the total population (double from today’s 0.6%). At the same time, Christians are also projected to decline from 78%, in 2010, to 66% and non-believers to rise from 16% to 26%. There are similar projections for Europe. By 2050, Christians are projected to drop from three-quarters of the population to less than two-thirds; while non-believers will represent up to nearly a quarter of the total population and Muslims about 10% of population. Over the same period, Hindus and Buddhists are expected to roughly double their number. Meanwhile, Latin America is also becoming more religiously diverse. Once it was a strong Catholic bastion but nowadays Catholicism’s identification has declined throughout the region, according to the 2014 Pew Research Center survey. Even although until 1960s at least 90% of Latin America’s population was Catholic, today less than 70% of adults across the region identify themselves as Catholic. In some cases, those figures drop lower, e.g. in Uruguay (42%), Honduras (46%), El Salvador (50%) or Brazil (61%). At the same time, other religious traditions (especially Protestants), and unaffiliated are on the rise.
As religious affiliation gets diverse (making clear that there is no such thing as religious homogeneity), religious minorities claim their right to live according their own beliefs. Moreover, and more importantly, they claim to do so on an equal footing to the majority. Workplace is not exempt from this phenomenon. This is because the workplace is important not only for its economic function, but is an essential part of the daily life of any worker. In addition, religious beliefs and practices are imperative for the employee. It is normal that tension and conflict occur at the intersection of these two important areas, working requirements and religion principles. Conflicts may arise from different situations, but usually they could be classified in four major areas: (a) Conflicts motivated by a need to reconcile conflicting religious time and working time obligations (e.g. Sabbatarian cases), (b) conflicts relating to personal grooming based on religious obligations, including requests to wear or not to wear some specific clothing and accessories. (c) conflicts motivated by requests for exemptions or alterations of particular job duties or circumstances, including socializing customs and (d) conflicts prompted by requests to use certain facilities or space, typically for prayer or meditation.
In the last few years, the concept of 'reasonable accommodation' has been taken from disability law to address the issue of religious diversity in the workplace. The UN Convention on the Rights of Persons with Disabilities defines 'reasonable accommodation' as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. The underlying idea is that to apply general, apparently impartial rules to everyone, despite their differences, could lead to produce an unfair harm to some specific group. Therefore, a reasonable accommodation approach could be necessary to guarantee that no one suffers discrimination based on religion. That would allow solving the conflict between employee's religious obligations and employer labor requirements. On the other hand, some concerns have arisen about reasonable accommodation approach, especially around the slippery slope notion: if 'we' allow this, then what next? That has led to more restrictive approaches about employers’ duty of accommodation.
Higher courts of the US and Europe, the Supreme Court and the European Court of Human Rights, have dealt with reasonable accommodation based on religious claims. Examining the way in which both courts address this issue is a valuable path to understand what problems are involved, what principles are applicable, and to what extent those principles could be extrapolated to Latin American law.
Key words: Reasonable accommodation - Labour law - USSC - ECHR - Religious diversity.
Founding: Center for Comparative Constitutional Law and Religion (University of Lucerne)