The trouble

Attacks on an Afghan taxi driver, a teenage Muslim girl, a young Bangladeshi man – press reports of these incidents on British and US soils show the considerable current state of hostility towards those in the Islamic community. It follows that these violent reactions are likely to be echoed to some degree in confrontations in the workplace. With emotions running high, employers should be alert to the fact that certain employees may be being subjected to harassment.

Employers in the US have to comply with legislation to provide a workplace that is free from harassment based on ethnicity, national origin or religion. These laws are likely to be tested significantly in the current climate.

In most parts of Europe, the position on religious discrimination is less advanced. But those of us in the EU now need to prepare for changes which mean that by December 2003 employees will have legal protection from discrimination on the grounds of religion.

Employers will be liable for acts of discrimination by their employees. Harassment on religious grounds may be more subtle than in other contexts, and therefore difficult to control or prevent. Workplace banter in particular should be carefully monitored – what may be inoffensive to one person may be extremely offensive to another.

Act now to stamp out intolerant behaviour and sentiment and it will be far easier to comply with the legislation when it does take effect. Raising awareness and training managers and employees in their new responsibilities is key. Although there will be new and untested issues to address, with a degree of foresight, employers who already have a proactive approach to avoiding discrimination should be able to adapt existing policies and minimise liability.

The Framework Directive

There is a distinct lack of uniformity among EU member states in the treatment of discrimination generally. With the exception of the 1976 Equal Treatment Directive, member states have been free to make their own choices as to what is and is not unlawful discrimination. This is about to change.

By virtue of the new European Framework Directive, all member states are required to introduce legislation prohibiting discrimination on the grounds of gender, disability, age, sexual orientation and religion or belief. A separate directive deals with race discrimination.

Existing Remedies

Existing protection is somewhat haphazard and in some instances non-existent in most EU member states. It is no accident that a key exception is Northern Ireland, where religious differences and terrorist activities have been addressed through specific laws aimed at combating religious discrimination. Since 1976 it has been unlawful to discriminate in employment there on the grounds of religious belief and/or political opinion.

The Northern Ireland Government’s intention was to promote equality of opportunity and fair participation in the workplace. It is an integral part of the employer’s personnel management function to ensure compliance with these objectives. Failure to do so may lead to a claim in the Fair Employment Tribunal.

Elsewhere in Europe, certain employers have included religious discrimination in their equal opportunities policies by making harassment on the grounds of religion a disciplinary offence. Otherwise, aggrieved employees have had to try to adapt existing legislation like the Race Relations Act 1976 in the UK, where attempts have been made to extend the category of “ethnic group” to cover religious communities. Sikhs and Jews have been held to constitute ethnic groups in the UK, but Muslims and other groups have not.

In the current climate, therefore, a Muslim who is abused either physically or verbally in the workplace has no remedy for direct discrimination and has to try to claim indirect race discrimination with the additional hurdles that involves. This is obviously unsatisfactory.

Human Rights legislation has also been seen as a potential means of redress for employees of public authorities in the UK. A claim may be made for a breach of Article 9 which enshrines freedom of thought, conscience and religion. An employee of a private entity would have to take a much less direct route and try to tack on a religious discrimination issue as part of another claim for, say, unfair dismissal by attempting to show that his religion had a bearing on the decision to dismiss. The Framework Directive provides a much more direct and tailored route for the aggrieved employee.

Changes in 2003

Member states have to introduce domestic legislation prohibiting religious discrimination by 2 December 2003. Both direct and indirect discrimination are prohibited. The directive is framed to give protection to those who are not members of a defined group as well as those who suffer for holding a particular religious belief or belonging to a religious group. Neither “religion” nor “belief” is defined, so many test cases are anticipated.

In Northern Ireland, there has been a particular struggle with the terms “religious belief” and “political opinion” as indicators of Catholic or Protestant ethnicity as compared with religious belief or political opinion per se. Tribunal decisions have shown that the term “religious belief” covers more than just Catholic and Protestant beliefs.

Cases brought by a Hindu and a born-again Christian have been successful. It has been held that it is discrimination to treat an individual less favourably on grounds of religious belief, even if that belief belongs to a third party – a wife or child, for example. And an individual may be discriminated against because of his or her perceived religious belief or political opinion.

In hindsight, it could be said that the legislators left the terms “religious belief and political opinion” general to avoid a technical loophole for would-be discriminators. It will be for the courts of the various member states to deal with the limitations on the protection as the inevitable inventive claims are brought. The Northern Ireland experience, however, is useful in illustrating the likely approach elsewhere.

There is an important safeguard built into the directive to avoid abuse. The provisions are stated to be without prejudice to measures laid down by national law necessary for public security, maintenance of public order, prevention of criminal offences, protection of health and the protection of the rights and freedom of others. An employee who takes drugs as part of religious worship would not, therefore, be able to claim discrimination if dismissed for having committed a criminal offence. There is also a “genuine occupational requirement” defence. It states that there must be a legitimate objective and the requirement must be proportionate.

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