Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: Gloria.Cox [at] unt.edu.
Last year in Great Britain, Amina Azmi, a teacher’s aide, was directed to remove her full-face veil while teaching. She refused, on the basis that some of the teachers with whom she worked were male. After she was dismissed from her job, she brought legal action against the school, claiming religious discrimination in the workplace. In response, school officials argued that students benefit from seeing the facial expressions of teachers and that learning is hindered without such informal clues. Courts decided for the school and against Azmi, although it would be a mistake to view this case as having settled the issue of veils and headscarves in the workplace. As British Attorney Audrey Williams pointed out, “. . . employers should note that the circumstances in this case are quite specific – relating to the classroom setting, the nature of the teacher/pupil relationship, and the impact that wearing a full-face veil would have on a teacher’s ability to do their job” (Berry 2007).
It is just such situations that give contemporary relevance to RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE, by Lucy Vickers. In this relatively short but important book, Vickers tackles a complex set of issues related to equality and religious freedom in the United Kingdom (UK), and, peripherally, the United States, Canada, and the European Union. The author does a fine job of introducing and explaining the major legal issues of this important topic. In her words, “The purpose of this book is to examine the interaction of the rules on religious discrimination with the right to religious freedom and to contribute to the debate over the proper limits on religious freedom in the workplace” (p.1). Overall, her effort is scholarly, informative, interesting, and thought-provoking.
Vickers begins with the European Commission’s Directive on Equality at Work, explaining that the Directive provides general guidelines for the domestic legislation that member countries are supposed to enact. The United Kingdom has passed such legislation, the implementation of which has given rise to some interesting and complex questions. Among the most frequent complaints against employers are the following: 1) refusal to allow employees time off for religious observances; 2) denial of permission to wear symbols of religious faith; and 3) discrimination in hiring, [*1030] training, and promoting members of certain religions or beliefs.
A less obvious consequence of the anti-discriminatory legislation has been opposition from religious groups who want to be able to restrict their hiring, promoting, and firing to members of their own faith, excluding all others. Additionally, some religious groups want to discriminate, as when they refuse to hire homosexuals, divorced women, or others who are not in compliance with church rules. Laws in the United Kingdom, in fact, accommodate some of these preferences, although sex and racial equality rules may trump religious preferences.
Add to those problems the issues that surface in the workplace just because employees of different religions, no religion at all, or differing levels of commitment toward religion work together. While the religious person may assert the right to proselytize, the nonreligious person may believe that his or her religious freedom is violated by having to listen to religious messages from the devout. Other practices also have the potential to make fellow workers uncomfortable, including the wearing of religious symbols. Take, for example, the Muslim woman who wears a headscarf. She may be upset about the Muslim woman who does not, and vice versa. In another example, a person who opposes abortion on account of her religious beliefs may want to let others know of her opposition, but it surely cannot be permitted to take the form of a badge she wears that displays the picture of an aborted fetus (WILSON v. US WEST COMMUNICATIONS 1995). And what about the male worker who refuses to work around women? Can he insist on male-only colleagues?
Additionally, the image of the business itself may be relevant, if owners have worked to build and maintain a secular presence for it. That carefully crafted vision may be affected if the employer is required to accommodate the religious practices of one or more employees. Add to that mix government agencies that are required to display a secular image for clientele in a society that legally separates church and state, and also pays close attention to equality issues. Vickers clearly establishes the complexity of the subject with which she is dealing.
One of the first questions Vickers tackles is the origin of human rights. She notes that Westerners are quick to say that human rights derive from human beings having been created in the image of God, but that does not serve the issue very well in the context of religious diversity and with those who do not believe in or practice any religion. Vickers provides a particularly interesting discussion on this key point, offering several non-religious justifications for human rights. As she notes, “Since the Enlightenment there has been a search for a human rights theory which is not predicated on the existence of God” (p.36). The result has been a focus on human dignity, including the idea of human equality. She notes that, “for individuals to flourish they need to enjoy the freedom to choose their own concept of good” (p.38).
There is a logical progression from concepts of human rights to efforts to define religion, in that the European Convention on Human Rights (ECHR) recognizes protections for practice of a religion or belief. While the term religion tends to be difficult to define, there are certain key characteristics associated with religion, including for many a belief in God or some other supreme being. Religion is also characterized by consideration of matters [*1031] of “ultimate concern” (p.15). Articles 9 and 14 of the ECHR provide for forum internum, which is “the right to have inner thoughts and beliefs” (p.41). Related is the concept of forum externum, which is the right to practice, or manifest one’s beliefs including worship, teaching, practice, and observance (p.94). There is both an individual and a collective dimension to this freedom, although it is not absolute and may be restricted based on numerous considerations.
At this point, the author begins her analysis of specific religious rights in the workplace, pointing out that the workplace is a site of competing relationships and rights that must be balanced in search of a sense of proportionality. As Vickers moves through one topic after another, we recognize the difficulty of sorting out the issues. If one person’s faith contains the view that homosexuality is wrong, is that person’s religious freedom violated by a diversity policy that insists on equal treatment for homosexual applicants and employees? If women are accorded lesser or different status in a religion, must an employer overlook his personal religious beliefs in awarding promotions in the workplace? Vickers emphasizes that there is a solution for every violation of religious rights – resignation from the job. After all, no one is required to take and keep a certain job, and quitting relieves the oppressed individual of the oppression (p.45). However, that is hardly any protection in a world that values work so greatly. For most people, work serves many benefits, including the obvious economic one. Still, religious rights cannot overshadow other fundamental rights and be permitted to take priority. Society values equality, for example, and therefore cannot allow religious interests to trump such an important secular interest.
According to Vickers, “The right to freedom of religion is granted extensive protection within international law, demonstrated by its inclusion in the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights” (p.84). The ECHR has taken a narrow view of religious protections under Article 9, making a distinction between religiously motivated conduct (which is not protected) and the manifestation of religion (which is protected). One example Vickers provides is that of a Christian wearing a cross as a necklace or pin. In fact, there is no requirement for Christians to identify themselves by the wearing of a cross, so the act is not a manifestation of religion but merely religiously motivated behavior (p.98). Vickers makes clear her opposition to this distinction (p.218).
One of the most interesting parts of the book is the author’s attention to common complaints in the workplace, such as denial of requests for time off for worship or prayer, the refusal of employees to carry out assigned tasks to which they object, and lifestyle issues. She does a fine job of capturing the nuances of court rulings in her exploration of each of these areas, enabling the reader to gain insight into legal perspectives. Lifestyle issues, for example, tend to arise in religious organizations that expect employees to maintain the values of the faith. It is not uncommon, then, to come across employees who have been dismissed for marrying outside the church, divorcing [*1032] their spouse, or having an extramarital affair. Courts generally respect the organization’s rights over the individuals in such instances, though not without exceptions.
Finally, Vickers provides a brief comparative perspective by analyzing some aspects of religious discrimination law in the United States, Europe and Canada. In the United States, protection comes primarily from Title VII of the Civil Rights Act of 1964, as amended. She notes that US courts tend to take an expansive view of what constitutes a religion, but draws the line on occasion, refusing, for example, the Ku Klux Klan’s claims of protection as a religious organization and a single individual’s right to eat cat food as a protected religious practice. Beginning in 1972 with amendments to require reasonable accommodation for religious issues, there appeared to be much greater protection for individuals, although Vickers suggests that not much is required of employers to demonstrate hardship, which allows them to avoid making accommodations.
Religious harassment is also an issue, and follows the well-known hostile environment and quid pro quo guidelines. Proselytizing in the workplace is the most common form of harassment, as an employee tries to convert others, even in the face of objections that the messages are unwelcome. Such activities take on added dimensions when the person making the effort to convert another is in a position of authority over the audience (p.192). The legal question is where to draw the line between practice of one’s religion and the right to work without the presence of unwelcome proselytizing.
In Canada, discrimination on the basis of religion is illegal, and religion is broadly defined, usually by the individual making a claim to protection. In fact, a person’s views are typically accepted, even if they deviate from those of other adherents of the same faith (p.196). Just as in the ECHR, Canadian law distinguishes between required manifestations of religion, which are protected, and religiously-motivated behavior, which is not protected (p.197). The author draws the conclusion that Canadian law places a heavier burden on employers to accommodate employees than US law (p.199), although courts expect parties on both sides to compromise on these matters (p.205). Vickers includes a brief discussion of cases dealing with employment within religious organizations, including whether a Catholic can be dismissed for violating tenets of the faith, such as marrying a divorced man or having an extramarital affair. In such cases, the answer has generally been in the affirmative.
Within the member countries of the European Union, religious discrimination in the workplace comes under Employment Equality Directive 2000/78 (p.206), although, as one would expect, there are important differences in implementation and enforcement across the membership. Vickers provides examples of definitions of religion and court rulings to illustrate these variations, which is thought-provoking.
In sum, Vickers has written a highly informative book that provides great detail about the subject. She offers the [*1033] reader nuanced and dense discussions of the issues, and while some readers may find the legal arguments and explanations complex, the informed reader with an interest in the subject will welcome the elucidation and clarification of many fine points. I found RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE to be an informative and welcome addition to the literature on this important subject.
Berry, Mike. April 2, 2007. “Teacher At Centre Of Veil Row Loses Dismissal Appeal Against Former Employer Kirklees Council.” Retrieved on October 31, 2008, from www. PersonnelToday.com.
WILSON v. US WEST COMMUNICATIONS, 58 F 3d 1337 (1995).
© Copyright 2008 by the author, Gloria C. Cox.
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