Today, most nations have employment laws that protect job applicants and employees from discrimination on grounds of religion. However, there is still much uncertainty in some places regarding outward displays of faith in the workplace. While employers are usually able to impose reasonable dress-codes and jewellery policies at work, they are often confused as to whether these can extend to religious clothes or symbols.
This issue has two aspects. The first, and simplest, is a question of actual law – to what extent can (or must) the employer limit the display of religious attire in the workplace? The second, and more complex, is the question of employment culture. Leaving aside the law, should an employer limit the display of religious symbols at work, after balancing the concerns of religious employees, secular co-workers and its business and customers generally?
United States of America
In the States, the Equal Employment Opportunity Commission has focussed particularly on pursuing cases of potential discrimination against Muslim employees, sensitive of the heightened tension after 9/11.
Two lawsuits in 2012 against clothing retailed Abercrombie & Fitch involved a refused job applicant and a terminated employee who both claimed to have been discriminated against for choosing to wear the Islamic hijab. In both cases A&F lost.
In the former, A&F failed to prove that their business would have notably suffered due to deviation from their “Look Policy” and therefore brand image. In the latter, A&F’s refusal to honour the employee’s request for a compromise on the issue was found to be religious discrimination.
The rule of thumb which emerges from such cases is that an American employer must provide ‘reasonable accommodation’ to employers, to the extent that it does not cause an ‘undue hardship’ to their business. In other words, apply common sense.
This issue is currently at the forefront of the Canadian political arena. In pursuit of a secular state, political Parti Québécois recently proposed an outright ban of religious attire in public-sector workplaces in Quebec. While many claim that the proposal is unconstitutional, a survey conducted by SOM shows public support in favour at around 66%.
The proposal currently only affects public sector employees and it is unclear how far it will actually progress. However, it is an important indicator of attitudes in Canada which prudent private employers should take into account. Even if the proposal doesn’t come into force, it might well lead to related litigation down the line.
For the 28 European member states, employment law relating to discrimination is usually fixed at the EU level. Following this, dress codes which either explicitly or inadvertently prevent the display of religious symbols can be challenged if they can be said to amount to ‘indirect discrimination’ by putting religious employees at a disadvantage.
This principle does not limit itself to religious attire required by the religion in question. The 2012 case of a British Airways employee who was told to remove her crucifix necklace reached the European Court of Human Rights which ruled in her favour, stating that even though the Christian faith does not require followers to wear a cross, her choice to wear it was ‘intimately linked’ to her Christian beliefs.
Another case involving the Christian cross offers employers some leeway in their dress codes where health and safety issues are of concern. Also originating in the UK courts, this involved a nurse who had been moved to a desk-job for wearing her crucifix necklace in contravention of the employing hospital’s anti-jewellery policy. Here, the ECHR found that the hospital was justified as the anti-jewellery policy had the genuine purpose of stopping the spread of disease.
It is worth noting that Europe has a patchwork of approaches on wearing the hijab or full burqah in public places or in certain roles such as teaching or the civil service. These approaches range from complete bans to complete freedom.
Opinion polls suggest that public opinion appears significantly more in favour of individual freedom over restriction. However, it also appears that people find restrictions on religious attire more acceptable for less directly client-facing roles. There is support for bans on grounds of health and safety.
What should global employers do?
As might be expected, employers should take care to know the local law and culture before deciding their approach. Thereafter, common sense is a very good tool to apply, together with an acceptance that their policies may have to vary between jurisdictions.