Discrimination, in its etymological sense, means the action and effect of making a distinction, or differentiating one person or thing from another. Discrimination itself is not morally wrong. When a company selects personnel, discrimination occurs in accordance with the profile required for the job, and this is not necessarily incorrect in ethical terms. However, in talking about discrimination, this word generally has a negative connotation, meaning "invidious discrimination." In this sense, the common meaning of "discrimination" includes a judgment based on unacceptable ethical or legal motives, one of which involves religion.
Religious discrimination takes place when one person is treated less favorably than another is, has been, or would be treated in a comparable situation on the grounds of religion. The prohibition of religious discrimination covers most social activities, including business.
Three forms of religious discrimination can be distinguished: (a) direct, where this less favorable treatment occurs unmasked, (b) indirect discrimination, where an apparent neutral provision, criterion, or practice would put persons having a particular religion or belief at a particular disadvantage compared with other persons, unless such is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, and (c) religious harassment, which occurs when unwanted conduct related to any of the grounds of religion takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Many international human rights doctrines have articulated the freedom from religious discrimination as a human right. However, people in many theocratic countries deny the importance of such a right and maintain the criteria of adherence to the official religion as essential in filling leadership roles in society and business. This commitment is founded on a belief in the fundamental rightness of their faith, which overrides the standards of rational ethics, as defined by Western philosophers and political theorists. Freedom from religious discrimination is closely related to another even more fundamental right: religious freedom. Religious freedom is seen as necessary for carrying out the moral duty to search for the truth, especially with reference to God, religion, and a meaningful sense of life. It also provides protection for those who do not believe in God to adhere to their own beliefs.
Religious freedom requires immunity from coercion for individuals and social groups, including businesses, governments, and any other human power, which can be forced to act in a manner contrary to their own beliefs. Religious discrimination impedes or even prevents religious freedom and frequently entails the disdaining of people and lack of respect for individual freedom.
Significant International Texts and Legislation on Religious Discrimination
There are significant international declarations against religious discrimination. In 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights, in which Article 2 states that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of race, color, sex, language, religion, or political or other opinion. Article 16 adds that everyone has the right to freedom of thought, conscience, and religion. In 1981, in a more specific way, Page 1812 | Top of Articlethe General Assembly adopted the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
Prohibitions against discrimination on grounds of religion are also present in the legislation of the United States and other countries. Title VII of the U.S. Civil Rights Act of 1964 makes it unlawful for employers to discriminate against any individual on the grounds of religion. With the Equal Employment Act of 1972, the U.S. Congress amended Title VII requiring that employers reasonably accommodate the religious preferences of employees when this can be done without undue hardship when the employees are conducting the employer's business. In addition, it clarified that the term religion includes all aspects of religious observance and practice as well as belief. The Workplace Religious Freedom Act of 2003 also amended Title VII of the Civil Rights Act of 1964 to establish provisions with respect to religious accommodation in employment. In Europe, the Council Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation prohibiting, among other things, discrimination on grounds of religion or belief. Its prohibitions included the types mentioned above: direct and indirect discrimination and religious harassment. Since 2003, national legislation in European Union member states has been used to develop the implementation of this directive.
From both legal and ethical perspectives in the Western tradition, it can be stated that freedom from religious discrimination is an important right, which should be respected and fostered, but it is not an absolute right and, in certain circumstances, another right may have priority when a conflict arises.
Freedom From Religious Discrimination in the Workplace
The problem is that religious discrimination is a constraint to employers' freedom in hiring, promotion, dismissal, and work conditions within a company, and conflicts can arise. Nondiscrimination on religious grounds requires the employer to provide reasonable accommodation to an employee's sincere religious beliefs, unless this accommodation would cause an undue hardship to the company. From a legal perspective, at least in the United States and in the European Union, this is also mandatory. However, not only the employer but also the employee should make an effort to arrive at a reasonable solution to avoid religious discrimination.
In practice, it is difficult to establish clear rules about what a "reasonable accommodation" and an "undue hardship" are. Determining them requires common sense and practical wisdom to explore imaginative and fair alternatives. Legal cases and empirical information can help to find an appropriate solution in each situation, which is compatible with the employee's religious beliefs without compromising the employment entitlements of other employees and with minimal costs to the enterprise.
Undue hardship is generally evaluated by considering the damage that religious discrimination would cause. It is assumed that avoiding religious discrimination could have a cost, but this cost has to be reasonable. This is not because profits are intrinsically more important than people, but profits are related to other people's interests and rights and perhaps to the competitive continuity of a business, which obviously affects people's well-being. The Workplace Religious Freedom Act of 2003 clarifies that, for legal purposes, the term undue hardship means an accommodation requiring significant difficulty or expense, including (a) the costs of loss of productivity and of retraining or hiring employees or transferring employees from one facility to another; (b) the overall financial resources and size of the employer involved, relative to the number of its employees; and (c) for an employer with multiple facilities, the geographic separateness or administrative or fiscal relationship of the facilities. From an ethical perspective, these criteria could also be valid. These legal criteria provide an insight to aid sound ethical judgments in specific situations.
There are some kinds of businesses or organizations in which a certain religious belief could be necessary because a religious orientation is an essential part of the organization's mission. This is the case, for instance, with religious institutions, which require appropriate people to carry out their mission properly. Similar reasoning could be extended to some key positions in educational or medical centers that define themselves as organizations with a religious mission. U.S. legislation explicitly allows religious discrimination for religious institutions. In Europe, this is not so explicit, but it can also be justified.
Some Specific Issues
Religious Feasts, Worship, and Prayers
Most religions have feast days in reverence to divinity, during which adherents pray, worship, and enjoy the Page 1813 | Top of Articleday in particular ways. Jews celebrate the Sabbath, as the weekly Lord's day, remembering the seventh day of Creation, on which, according to the Bible, God rested. According to Jewish tradition, Jews shouldn't work on Saturday, and some Jews do not work past sundown on Friday afternoon. Christians consider Sunday as the fulfillment of the Sabbath, because this is the day of Christ's Resurrection. They participate in the Eucharist or other religious services and abstain from working. For Muslims, Friday is the day they meet to pray in mosques.
Apart from this, most religions have special festivals or periods of time with special religious significance. In addition, Muslims generally have to make a pilgrimage to Mecca once in their lifetime. In many companies, it has been not so difficult to accommodate business schedules to holy days or to religious duties on these days, through a sense of comprehension and flexibility and a good rotation system.
However, some managers think that praying five times a day, which is required in Islam, could be more difficult to harmonize with production needs. It could even be disruptive and cause resentment among other employees, especially in societies in which Muslims are a minority. In spite of this difficulty, some companies have found solutions based on goodwill of both employer and employee.
Dress and Grooming Policies
Certain business policies, compulsory for every employee, can pose dilemmas of religious discrimination. Thus, dress requirements in some companies, such as those for people in transportation, security guards, fast-food workers, and so on, can conflict with the practices of Sikh employees who wear headscarves or turbans for religious motives. A successful solution has been to permit wearing headscarves or turbans, while maintaining the rest of the required uniform.
Another conflict could appear when the workplace requires certain clothing and an appearance that may conflict with certain religious beliefs (e.g., that women should keep their legs and head covered at all times). Sometimes, as long as no damage is done to the business, companies admit a certain degree of flexibility in clothing requirements to avoid religious discrimination, but this is not always possible. In such cases, management generally prefers making this point clear when contract conditions are discussed.
Some religious practices, such as wearing a beard or having long hair can conflict with health and safety requirements. Some clear regulations on this point help us to find solutions. Those who handle food need to keep long hair tied back or otherwise restrained. A hygienic head cover for long hair and a net for long beards are generally accepted as a reasonable accommodation.
Some specific training programs, for instance, those based on New Age spirituality, can pose a problem. These programs employ a variety of techniques (meditation, self-hypnosis, altered states of consciousness, and guided visualization) that can conflict with the employees' religious beliefs. These kinds of training programs, which are not too common, have been declared noncompulsory by courts on grounds of religious discrimination.
Forbidding discreet religious symbols is generally understood as religious discrimination. A more complex case arises when certain symbols might seriously annoy or offend other employees or customers. In this latter situation, some people suggest employing common sense and flexibility to arrive at the best solution for both sides, and, in practice, it is not too difficult to find solutions that work for all.
Free Speech and Proselytism
Free speech on one's own religion and even respectfully trying to persuade others about religious matters without neglecting business obligations is normally allowed. However, proselytizing using harassment, especially if it comes from a supervisor, is a different matter. Harassment is a form of religious discrimination, as has been mentioned above.
Being aware of situations of religious discrimination, such as those described here, means respecting human freedom. This helps avoid expensive trials, negative corporate image, and loss of reputation.
Brady, T. (1993). The legal issues surrounding religious discrimination in the workplace. Labor Law Journal, 44, 246-251.
Brierton, T. D. (1988). Religious discrimination in the workplace: Who's accommodating who? Labor Law Journal, 39, 299-306.
European Council. (2000). European Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Official Journal of the European Communities (L 303/16, 2.12.2000).
United States Commission on Civil Rights. (2001). Religious discrimination: A neglected issue. Honolulu, HI: University Press of the Pacific.
Vickers, L. (2004). Approaching religious discrimination at work: Lessons from Canada. International Journal of Comparative Labour Law & Industrial Relations, 20, 177-200.
Wolf, M., Friedman, B., Sutherland, D., & Friedman, B. (1998). Religion in the workplace: A comprehensive guide to religious discrimination and accommodation. Chicago: American Bar Association.
Gale Document Number: GALE|CX2660400704