Religion and belief discrimination in employment. The EU law

The Employment Equality Directive1 introduced in 2000 requires all Member States to protect against discrimination on grounds of religion and belief in employment, occupation and vocational training.This report provides an overview of the provisions on religion and belief and examines the approach taken to implementation by Member States.The report also identifies some of the problematic legal issues which are likely to arise, and considers what should be the proper scope of protection against discrimination on grounds of religion and belief. The complexity of this question comes from the fact that while Europe is committed to upholding religious freedom, it is equally committed to equality and other fundamental freedoms. At times these rights are complementary, with protection against religious discrimination enabling full enjoyment of religious freedom; in other respects, the rights are in tension, with religious groups failing to recognise equality rights or the rights of those outside the religious group.

The mechanism within the Directive for achieving an equilibrium between conflicting rights is via the exceptions for genuine occupational requirements, and the requirement for indirectly discriminatory rules to be justified. These mechanisms allow exceptions to the non-discrimination principle to be subject to review by courts to ensure that they are objective and reasonable.Courts need to find a balance between protecting freedom of religion and respecting the rights of others. To do this they will need to assess the proportionality of exceptions to the non-discrimination principle in the light of the need to uphold equality, to protect freedom of religion, and to protect other human rights such as privacy and freedom of speech.The assessment of proportionality should also take into account the equality interests of service users, the freedom of religion of all members of staff, the right to freedom from religion for customers and colleagues, and an interest in political or religious neutrality for the employer.Where the balance lies may depend in part on the status of the employer (for example, whether it has a religious ethos and whether it is part of the public or private sector) and whether it is has a monopoly on providing particular types of employment.

In effect, the Employment Equality Directive requires resolution in the work context of many highly contested and sensitive conflicts that can arise in relation to competing rights to religious equality and to equality on grounds including gender and sexual orientation. The resolution suggested by the Directive is to provide a proper procedural basis for the consideration of competing arguments. As the German Constitutional Court has recognised, the aim in balancing such complex competing rights is to achieve ‘practical concordancy’.3 This involves a recognition that the rights are not reconcilable, and yet that a modus vivendi must be found. If this is to be achieved, it will require an approach by the courts which is fact and culture dependent. One disadvantage of such a fact sensitive approach is that predicting the outcome in any particular case becomes difficult as so many interests are being weighed in the balance. However, the advantage of such an approach is that it can provide consistency in terms of clear procedural safeguards, to ensure that restrictions on religious freedom, and exceptions to the non-discrimination principle are only imposed after proper consideration of the varied interests at stake, in the cultural and political context of the particular member state. It may be that the role of the Directive and those who interpret it, is not so much to determine exactly where the equilibrium between the rights of workers to equality and the rights of religious groups to religious freedom and autonomy is to be found. Instead its role is to establish clear procedural safeguards so as to ensure that the correct issues are considered in the proportionality equation.

• Primary Source

The European Network of Legal Experts in the Non-discrimination Field http://www.non-discrimination.net/

European Commission: DG Justice: Tackling discrimination http://ec.europa.eu/justice/discrimination/index_en.htm

---