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FOURTH SECTION
CASE OF EWEIDA AND OTHERS v. THE UNITED KINGDOM
(Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10)
JUDGMENT
STRASBOURG
15 January 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The Court also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). At the date of adoption of the present judgment, it further decided to join all four applications.
- The following individuals and organisations were given leave by the President to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2): the Equality and Human Rights Commission; The National Secular Society; Dr Jan Camogursky and The Alliance Defense Fund; Bishop Michael Nazir-Ali; The Premier Christian Media Trust; the Bishops of Chester and Blackburn; Associazione Giuseppi Dossetti: i Valori; Observatory on Intolerance and Discrimination against Christians in Europe; Liberty; the Clapham Institute and KLM; the European Centre for Law and Justice; Lord Carey of Clifton; and the Fédération Internationale des ligues des Droits de l’Homme (FIDH, ICJ, ILGA-Europe).
- A hearing took place in public in the Human Rights Building, Strasbourg, on 4 September 2012 (Rule 59 § 3). There appeared before the Court:
(a) for the Government Ms Ahila SORNARAJAH Agent for the Government Mr James EADIE QC Counsel Mr Dan SQUIRES Counsel Ms Suzanne LEHRER Adviser Mr Hilton LESLIE Adviser Mr Wally FORD Adviser (b) for the first applicant Mr James DINGEMANS QC Counsel Ms Sarah MOORE Counsel Mr Thomas ELLIS Solicitor Mr Gregor PUPPINCK Adviser (c) for the third applicant Ms Dinah ROSE QC Counsel Mr Ben JAFFEY Counsel Mr Chris MCCRUDDEN Counsel Mr Mark JONES Adviser Mr Sam WEBSTER Adviser (d) for the second and fourth applicant s Mr Paul DIAMOND Counsel Mr Paul COLEMAN Counsel Mr Pasha HMELIK Counsel Ms Andrea WILLIAMS Adviser Mr Andrew MARSH Adviser
The Court heard addresses by Mr Eadie QC for the Government, Mr Dingemans QC for Ms Eweida, Ms Rose QC for Ms Ladele and Mr Diamond for Ms Chaplin and Mr McFarlane.
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant, Ms Eweida, was born in 1951 and lives in Twickenham. The second applicant, Ms Chaplin, was born in 1955 and lives in Exeter. The third applicant, Ms Ladele, was born in 1960 and lives in London. The fourth applicant, Mr McFarlane, was born in 1961 and lives in Bristol.
- The facts of the case, as submitted by the parties, may be summarised as follows.
A. Ms Eweida
- The first applicant, who spent the first eighteen years of her life in Egypt, is a practising Coptic Christian. From 1999 she worked as a member of the check-in staff for British Airways Plc, a private company.
- British Airways required all their staff in contact with the public to wear a uniform. Until 2004 the uniform for women included a high-necked blouse. In 2004 British Airways introduced a new uniform, which included an open-necked blouse for women, to be worn with a cravat that could be tucked in or tied loosely at the neck. A wearer guide was produced, which set out detailed rules about every aspect of the uniform. It included the following passage, in a section entitled “Female Accessories”:
“Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards, unless such approval is already contained in the uniform guidelines. ... NB No other items are acceptable to be worn with the uniform. You will be required to remove any item of jewellery that does not conform to the above regulations. ”
- When an employee reported for work wearing an item which did not comply with the uniform code, it was British Airways’ practice to ask the employee to remove the item in question or, if necessary, to return home to change clothes. The time spent by the employee in putting right the uniform would be deducted from his or her wages. Of the items of clothing considered by British Airways to be mandatory in certain religions and which could not be concealed under the uniform, authorisation was given to male Sikh employees to wear a dark blue or white turban and to display the Sikh bracelet in summer if they obtained authorisation to wear a short-sleeved shirt. Female Muslim ground staff members were authorised to wear hijab (headscarves) in British Airways approved colours.
be put at a particular disadvantage within the meaning of regulation 3(1) of the 2003 Regulations even if he or she complied, unwillingly, with the restrictions on visible religious symbols. Nevertheless, the Employment Appeal Tribunal concluded that the concept of indirect discrimination implied discrimination against a defined group and that the applicant had not established evidence of group disadvantage.
- Ms Eweida appealed to the Court of Appeal, which dismissed the appeal on 12 February 2010. It was argued on her behalf that the Employment Tribunal and Employment Appeal Tribunal had erred in law and that all that was needed to establish indirect discrimination was evidence of disadvantage to a single individual. The Court of Appeal rejected this argument, which it did not consider to be supported by the construction of the 2003 Regulations. It endorsed the approach of the Employment Appeal Tribunal, when it held that:
“... in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.” Moreover, even if Ms Eweida’s legal argument were correct, and indirect discrimination could be equated with disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, the Employment Tribunal’s findings of fact showed the rule to have been a proportionate means of achieving a legitimate aim. For some seven years no one, including Ms Eweida, had complained about the rule and once the issue was raised it was conscientiously addressed. In the interim, British Airways had offered to move the applicant without loss of pay to work involving no public contact, but the applicant had chosen to reject this offer and instead to stay away from work and claim her pay as compensation. In addition, the Court of Appeal did not consider that this Court’s case-law under Article 9 of the Convention would assist Ms Eweida. It referred to the judgment of the House of Lords in R (SB) v Governors of Denbigh High School [2006] UKHL 15, where Lord Bingham analysed the case-law of the Court and Commission and concluded:
“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience”.
- On 26 May 2010 the Supreme Court refused Ms Eweida leave to appeal.
B. Ms Chaplin
- The second applicant is also a practising Christian. She has worn a cross visibly on a chain around her neck since her confirmation in 1971, as an expression of her belief. She believes that to remove the cross would be a violation of her faith.
- Ms Chaplin qualified as a nurse in 1981 and was employed by the Royal Devon and Exeter NHS Foundation Trust, a State hospital, from April 1989 to July 2010, with an exceptional employment history. At the time of the events in question she worked on a geriatric ward. The hospital had a uniform policy, based on guidance from the Department of Health. The hospital’s uniform policy provided in paragraph 5.1.5 that “If worn, jewellery must be discreet” and in paragraph 5.3.6:
“5.3.6 To minimise the risk of cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That is: One plain smooth ring which will not hinder hand hygiene, One pair of plain discreet earrings. No necklaces will be worn to reduce the risk of injury when handling patients. Facial piercing if present should be removed or covered.” Paragraph 5.1.11 provided: “Any member of staff who wishes to wear particular types of clothes or jewellery for religious or cultural reasons must raise this with their line manager who will not unreasonably withhold approval.” There was evidence before the Employment Tribunal that, on health and safety grounds, another Christian nurse had been requested to remove a cross and chain and two Sikh nurses had been informed that they could not wear a bangle or kirpan, and that they had complied with these instructions. Two female Muslim doctors were given permission to wear close-fitting “sports” hijab, resembling a balaclava helmet.
- In June 2007 new uniforms were introduced at the hospital, which for the first time included a V-necked tunic for nurses. In June 2009 Ms Chaplin’s manager requested her to remove her “necklace”. Ms Chaplin insisted that the cross was a religious symbol and sought approval to wear it. This was refused, on the ground that the chain and cross might cause injury if an elderly patient pulled on it. Ms Chaplin then proposed wearing the cross on a chain secured with magnetic catches, which would immediately break apart if pulled by a patient. However, the health authority rejected this on the ground that the cross itself would still create a risk to health and safety if it were able to swing free; for example, it could come into contact with open wounds. Finally, it was suggested that she could secure her cross and chain to the lanyard which held her identity badge. All staff were required to wear an identity badge clipped to a pocket
The council will not tolerate processes, attitudes and behaviour that amount to discrimination, including harassment, victimisation and bullying through prejudice, ignorance, thoughtlessness and stereotyping. ... All employees are expected to promote these values at all times and to work within the policy. Employees found to be in breach of this policy may face disciplinary action.”
- In 2002 Ms Ladele became a registrar of births, deaths and marriages. Although she was paid by the local authority and had a duty to abide by its policies, she was not employed by it but instead held office under the aegis of the Registrar General. The Civil Partnership Act 2004 came into force in the United Kingdom on 5 December 2005. The Act provided for the legal registration of civil partnerships between two people of the same sex, and accorded to them rights and obligations equivalent to those of a married couple. In December 2005 Islington decided to designate all existing registrars of births, deaths and marriages as civil partnership registrars. It was not required to do this; the legislation simply required it to ensure that there was a sufficient number of civil partnership registrars for the area to carry out that function. Some other United Kingdom local authorities took a different approach, and allowed registrars with a sincerely held religious objection to the formation of civil partnerships to opt out of designation as civil partnership registrars.
- Initially, Ms Ladele was permitted to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. In March 2006, however, two colleagues complained that her refusal to carry out such duties was discriminatory. In a letter dated 1 April 2006 Ms Ladele was informed that, in the view of the local authority, refusing to conduct civil partnerships could put her in breach of the Code of Conduct and the equality policy. She was requested to confirm in writing that she would henceforth officiate at civil partnership ceremonies. The third applicant refused to agree, and requested that the local authority make arrangements to accommodate her beliefs. By May 2007 the atmosphere in the office had deteriorated. Ms Ladele’s refusal to carry out civil partnerships was causing rota difficulties and putting a burden on others and there had been complaints from homosexual colleagues that they felt victimised. In May 2007 the local authority commenced a preliminary investigation, which concluded in July 2007 with a recommendation that a formal disciplinary complaint be brought against Ms Ladele that, by refusing to carry out civil partnerships on the ground of the sexual orientation of the parties, she had failed to comply with the local authority’s Code of Conduct and equality and diversity policy. A disciplinary hearing took place on 16 August 2007. Following the hearing, Ms Ladele was asked to sign a new job description requiring her to carry out straightforward signings of the civil partnership register and administrative
work in connection with civil partnerships, but with no requirement to conduct ceremonies.
- Ms Ladele made an application to the Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and harassment. On 1 December 2007 the Statistics and Registration Act 2007 came into force and, instead of remaining an office holder employed by the Registrar General, Ms Ladele became an employee of the local authority, which now had the power to dismiss her. It was advanced before the Employment Tribunal that if the applicant lost the proceedings, it was likely that she would be dismissed.
- On 3 July 2008, the Tribunal upheld the complaints of direct and indirect religious discrimination, and harassment, holding that the local authority had “placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of [Ms Ladele] as one holding an orthodox Christian belief”. The local authority appealed to the Employment Appeal Tribunal, which on 19 December 2008 reversed the decision of the Employment Tribunal. It held that the local authority’s treatment of Ms Ladele had been a proportionate means of achieving a legitimate aim, namely providing the registrar service on a non-discriminatory basis.
- The decision of the Employment Appeal Tribunal was appealed to the Court of Appeal, which on 15 December 2009 upheld the Employment Appeal Tribunal’s conclusions. It stated, at paragraph 52:
“...the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.” The Court of Appeal concluded that Article 9 of the Convention and the Court’s case-law supported the view that Ms Ladele’s desire to have her religious views respected should not be allowed “...to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.” It further noted that from the time the 2007 Regulations (see paragraph 42 below) came into force, once Ms Ladele was designated a Civil Partnership
prepared to continue. He subsequently provided counselling services to two lesbian couples without any problem, although in neither case did any purely sexual issues arise.
- In 2007 Mr McFarlane commenced Relate’s post-graduate diploma in psycho-sexual therapy. By the autumn of that year there was a perception within Relate that he was unwilling to work on sexual issues with homosexual couples. In response to these concerns, Relate’s General Manager, a Mr B, met with Mr McFarlane in October 2007. The applicant confirmed he had difficulty in reconciling working with couples on same-sex sexual practices and his duty to follow the teaching of the Bible. Mr B expressed concern that it would not be possible to filter clients, to prevent Mr McFarlane from having to provide psycho-sexual therapy to lesbian, gay or bisexual couples.
- On 5 December 2007 Mr B received a letter from other therapists expressing concerns that an unnamed counsellor was unwilling, on religious grounds, to work with gay, lesbian and bi-sexual clients. On 12 December 2007 Mr B wrote to Mr McFarlane stating that he understood that he had refused to work with same-sex couples on certain issues, and that he feared that this was discriminatory and contrary to Relate’s Equal Opportunities Policies. He asked for written confirmation by 19 December 2007 that Mr McFarlane would continue to counsel same-sex couples in relationship counselling and psycho-sexual therapy, failing which he threatened disciplinary action. On 2 January 2008 Mr McFarlane responded by confirming that he had no reservations about counselling same-sex couples. His views on providing psycho-sexual therapy to same-sex couples were still evolving, since he had not yet been called upon to do this type of work. Mr B interpreted this as a refusal by Mr McFarlane to confirm that he would carry out psycho-sexual therapy work with same-sex couples and he therefore suspended him, pending a disciplinary investigation. At an investigatory meeting on 7 January 2008 the applicant acknowledged that there was a conflict between his religious beliefs and psycho-sexual therapy with same-sex couples, but said that if he were asked to do such work, then he would do so and if any problems arose then he would speak to his supervisor. Mr B understood by this that Mr McFarlane undertook to comply with Relate’s policies, and he therefore halted the disciplinary investigation.
- Following a telephone conversation with the fourth applicant, his supervisor contacted Mr B to express deep concern. She considered that Mr McFarlane was either confused over the issue of same-sex psycho- sexual therapy or was being dishonest. When these concerns were put to him, Mr McFarlane stated that his views had not changed since the earlier discussion and that any issue would be addressed as it arose. He was called to a further disciplinary meeting on 17 March 2008, at which he was asked
whether he had changed his mind, but he simply replied that he had nothing further to add to what he had said on 7 January 2008.
- On 18 March 2008 Mr B dismissed Mr McFarlane summarily for gross misconduct, having concluded that the applicant had said he would comply with Relate’s policies and provide sexual counselling to same-sex couples without having any intention of doing so. He could therefore not be trusted to perform his role in compliance with the Equal Opportunities Policies. An appeal meeting took place on 28 April. The appeal was rejected on the basis that Mr B’s lack of trust in Mr McFarlane to comply with the relevant policies was justified.
- Mr McFarlane lodged a claim with the Employment Tribunal, claiming, inter alia, direct and indirect discrimination, unfair dismissal, and wrongful dismissal. The Tribunal pronounced its judgment on 5 January
- It found that Mr McFarlane had not suffered direct discrimination contrary to Regulation 3(1)(a) of the 2003 Regulations (see paragraph 41 below). He had not been dismissed because of his faith, but because it was believed that he would not comply with the policies which reflected Relate’s ethos. With regard to the claim of indirect discrimination under Regulation 3(1)(b), the Tribunal found that Relate’s requirement that its counsellors comply with its Equal Opportunities Policy would put an individual who shared Mr McFarlane’s religious beliefs at a disadvantage. However, the aim of the requirement was the provision of a full range of counselling services to all sections of the community, regardless of sexual orientation, which was legitimate. Relate’s commitment to providing non- discriminatory services was fundamental to its work and it was entitled to require an unequivocal assurance from Mr McFarlane that he would provide the full range of counselling services to the full range of clients without reservation. He had failed to give such an assurance. Filtration of clients, although it might work to a limited extent, would not protect clients from potential rejection by Mr McFarlane, however tactfully he might deal with the issue. It followed that his dismissal had been a proportionate means of achieving a legitimate aim. The discrimination claim, therefore, failed. Finally, the Tribunal rejected the claim of unfair dismissal, finding that Relate had genuinely and reasonably lost confidence in Mr McFarlane to the extent that it could not be sure that, if presented with same-sex sexual issues in the course of counselling a same-sex couple, he would provide without restraint or reservation the counselling which the couple required because of the constraints imposed on him by his genuinely held religious beliefs.
- Mr McFarlane appealed to the Employment Appeal Tribunal against the Tribunal’s findings in relation to direct and indirect discrimination and unfair dismissal. On 30 November 2009 the Employment Appeal Tribunal held that the Tribunal had been correct to dismiss the claims. It rejected Mr McFarlane’s argument that it was not legitimate to distinguish between objecting to a religious belief and objecting to a particular act which
“ 3. Discrimination on grounds of sexual orientation (1) For the purposes of these Regulations, a person (‘A’) discriminates against another (‘B’) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances). .... (3) For the purposes of these Regulations, a person (‘A’) discriminates against another (‘B’) if A applies to B a provision, criterion or practice – (a) which he applies or would apply equally to persons not of B’s sexual orientation, (b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances), (c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and (d) which A cannot reasonably justify by reference to matters other than B’s sexual orientation.” In connection with the provision of goods, services and facilities, Regulation 4 provides:
“(1) It is unlawful for a person (‘A’) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (‘B’) who seeks to obtain or to use those goods, facilities or services— (a) by refusing to provide B with goods, facilities or services, (b) by refusing to provide B with goods, facilities or services of a quality which is the same as or similar to the quality of goods, facilities or services that A normally provides to— (i) the public, or (ii) a section of the public to which B belongs, (c) by refusing to provide B with goods, facilities or services in a manner which is the same as or similar to that in which A normally provides goods, facilities or services to— (i) the public, or (ii) a section of the public to which B belongs, or (d) by refusing to provide B with goods, facilities or services on terms which are the same as or similar to the terms on which A normally provides goods, facilities or services to— (i) the public, or (ii) a section of the public to which B belongs. (2) Paragraph (1) applies, in particular, to— (a) access to and use of a place which the public are permitted to enter, (b) accommodation in a hotel, boarding house or similar establishment, ....”
Regulation 8(1) provides that it is unlawful for a public authority exercising a function to do any act which constitutes discrimination. Regulation 30 provides that anything done by a person in the course of his employment shall be treated as done by the employer as well as by the person.
- The EU Framework Directive for Equal Treatment in Employment and Occupation 2007/78/EC underlies both of these sets of regulations. In dealing with the concept of discrimination, it provides in Article 2(2)(b) that:
“... indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.”
- Within the United Kingdom, domestic courts have considered the issues raised in these applications in some detail. In particular the House of Lords has had occasion in two leading cases to deal with the questions relating to both the manifestation of religious belief and the circumstances in which an interference with Article 9 will be found.
- In R (Williamson and Others) v. Secretary of State for Education and Employment [2005] UKHL 15 the claimants complained that the United Kingdom’s ban on corporal punishment of children in appropriate circumstances violated their right to freedom to manifest their religious belief under Article 9 of the Convention. At paragraph 23, in considering what amounted to a “manifestation” of belief, Lord Nicholls of Birkenhead, with whom Lords Bingham, Brown and Walker and Lady Hale agreed, set out some basic principles:
“... a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this prerequisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with
- This line of authority has been criticised by the Court of Appeal as overly restrictive ( Copsey v WWB Devon Clays Ltd 2005 EWCA Civ 932, [2005] 1CR 1789, paras 31-39, 44-66), and in [ R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15], para 39, the House questioned whether alternative means of accommodating a manifestation of religions belief had, as suggested in the Jewish Liturgical case, above, para 80, to be ‘impossible’ before a claim of interference under article 9 could succeed. But the authorities do in my opinion support the proposition with which I prefaced para 23 of this opinion. Even if it be accepted that the Strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent body of authority which our domestic courts must take into account and which shows that interference is not easily established.”
III. RELEVANT COMPARATIVE LAW
A. Council of Europe Member States
- An analysis of the law and practice relating to the wearing of religious symbols at work across twenty-six Council of Europe Contracting States demonstrates that in the majority of States the wearing of religious clothing and/or religious symbols in the workplace is unregulated. In three States, namely Ukraine, Turkey and some cantons of Switzerland, the wearing of religious clothing and/or religious symbols for civil servants and other public sector employees is prohibited, but in principle it is allowed to employees of private companies. In five States - Belgium, Denmark, France, Germany and the Netherlands - the domestic courts have expressly admitted, at least in principle, an employer’s right to impose certain limitations upon the wearing of religious symbols by employees; however, there are neither laws nor regulations in any of these countries expressly allowing an employer to do so. In France and Germany, there is a strict ban on the wearing of religious symbols by civil servants and State employees, while in the three other countries the attitude is more flexible. A blanket ban on wearing religious clothing and/or symbols at work by private employees is not allowed anywhere. On the contrary, in France it is expressly prohibited by law. Under French legislation, in order to be declared lawful any such restriction must pursue a legitimate aim, relating to sanitary norms, the protection of health and morals, the credibility of the company’s image in the eyes of the customer, as well as pass a proportionality test.
B. Third countries
1. The United States of America
- For civil servants and Government employees, the wearing of religious symbols is protected under both the United States Constitution (the Establishment Clause and the Free Exercise Clause) and the Civil Rights
Act 1964. When a constitutional claim is made by a public employee, the courts apply the standard of intermediate scrutiny, under which the Government can impose restrictions on the wearing of religious symbols if the action is “substantially related” to promoting an “important” Government interest (see Tenafly Eruv Association v. Borough of Tenafly , 309 F.3d 144, 157 (3rd Cir. 2002)). When a statutory claim is made, the employer must have either offered “reasonable accommodation” for the religious practice or prove that allowing those religious practices would have imposed “undue hardship” on the employer (see Ansonia Board of Education v. Philbrook , 479 US 60 (1986); United States v. Board of Education for School District of Philadelphia , 911 F.2d 882, 886 (3rd Cir. 1990); Webb v. City of Philadelphia , 562 F.3d 256 (3rd Cir. 2009)). For private employees there are no constitutional limitations on the ability of employers to restrict the wearing of religious clothing and/or symbols. However, the restrictions from Title VII of the Civil Rights Act continue to apply so long as the employer has over 15 employees.
2. Canada
- Religious freedom is constitutionally protected under the Canadian Charter of Rights and Freedoms 1982 (the Charter). Section 1 of the Charter provides the state with authority to infringe on freedom of religion in the least restrictive way possible for a “compelling government interest” (see B(R) v. Children’s Aid Society of Metropolitan Toronto (1995) 1 SCR 315). Canadian employers, in general, are expected to adjust workplace regulations that have a disproportionate impact on certain religious minorities. The standard applied by the courts in this connection is that of “reasonable accommodation” (see R v Big M Drug Mart Limited (1985) 1 SCR 295). Recent litigation on this point has centred on the rights of Sikh persons to wear a turban or kirpan at work. In Bhinder v. Canadian National Railway Co. (1985) 2 SCR 561, the Supreme Court determined that the claimant could not wear a turban at work because it interfered with his capacity to wear a hard helmet. This was found to represent a “ bona fide occupational requirement”. The Canadian courts, rather than purporting to define a religion or religious practice, are more interested in the sincerity of the belief in a practice that has a nexus with a religion (see Syndicat Northcrest v. Amselem (2004) 2 SCR 551). In Multani v. Commission scolaire Marguerite-Bourgeoys (2006) 1 SCR 256, in which the Supreme Court of Canada upheld a Sikh student’s right to wear a kirpan to school, the court did not undertake a theological analysis of the centrality of kirpans to the Sikh faith. Instead, the court considered that the claimant “need[ed] only show that his personal and subjective belief in the religious significance of the kirpan [was] sincere”.
