Indirect Discrimination, Reasonable Accommodation and Religion

Summary

INTRODUCTION

In this chapter, it is argued that there is no reason why the duty to make reasonable accommodation for people with disabilities, which exists in European Union (EU) law, could not be extended to include religious people and people with other characteristics which attract protection under antidiscrimination law. However, even if this duty is not extended, it is suggested that something which comes close to such a duty is part of the provision of indirect discrimination. This chapter specifically focuses on the accommodation of religious manifestations and practices, but the duty could be expanded to include all grounds of discrimination covered by EU law (sex, race, religion or belief, age and sexual orientation). It can be said that EU law itself makes certain accommodations in relation to sex, for example, in the regulations protecting pregnant and breast-feeding women, and in relation to age, where it protects younger workers.

EXISTING DUTIES OF REASONABLE ACCOMMODATION

In EU law, a duty of reasonable accommodation in relation to disabled people is laid down in Article 5 of Directive 2000/78/EC. Employers must ‘take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’. The first sentence of Article 5 provides that reasonable accommodation must be made ‘in order to guarantee compliance with the principle of equal treatment’, so this duty is clearly placed within a discrimination context and a failure to provide accommodation can thus be seen as a form of discrimination. However, this duty applies only in relation to disability and does not extend to any of the other grounds covered by Directive 2000/78/EC (religion or belief, age and sexual orientation), nor does it extend beyond the employment field.

In contrast, in the USA, a duty of reasonable accommodation short of ‘undue hardship’ was first laid down in law for cases of discrimination on the ground of religion and then later extended to cases of disability discrimination.