On Placing Limitations on Religious Freedom at the Workplace

The question of the freedom of religious expression in the workplace is amongst the most complicated problems in management today. Naturally, there is a right to self-expression that all employees should be permitted to enjoy, but when does enough self-expression become too much? Complaints on the grounds of religious discrimination have, since 2007 gone up significantly, especially the U.S. There are any number of reasons for this – increased immigration bringing together a cultural melting-pot of employees across the business spectrum, globalisation of corporations opening branches in new areas, bringing businesses into contact with cultures that are significantly different from their own and more besides. This brings up an important question for employers:

Simply put, at what point can religious freedoms at work be considered problematic or discourteous to other people?

It would be nice to think that in the workplace, all forms of religious expression could be allowed – burkas, turbans and crucifixes alike, as well as the business allowing employees to act with conscience and conviction towards their work. It is not always this simple though.

There are problems for small businesses – if religious freedoms are protected by law (or general company policy), but at odds with the local community, should the business react to the needs of customers, or the needs of staff? Equally, for multi-national corporations, joined-up management dictates that policy should be equal across the board, but often, this is simply not possible. A company with offices in the UK and France might discover that while permitting female employees to wear a Niqab or Burka in the UK is entirely permissible, it would not be allowed to do so in France due to conflicting laws on religious expression there, so in the interests of fairness, should the religious clothing be banned across the entire company?

What should a business do about this? It is not necessarily enough for an employer to be able to say ‘this is not a valid expression of religion, please stop’.

It seems reasonable to suggest that wearing a Burka in the workplace outside of certain Middle Eastern countries is not permissible, not least because it could reasonably be described as interfering with the employee’s ability to properly work. Equally, the use of items such as crucifixes or prayer beads can be problematic in many work environments where having hanging jewelry can pose a danger. It should also go without saying that the Sikh Kirpan, a small dagger that some Sikhs are required to carry as an article of faith, is unacceptable in most countries, although many places with a high concentration of Sikhs have altered laws, that will allow practicing Sikhs to carry their Kirpan with them.

Equally, restricting a view of religious expression simply to the wearing of religious items and imagery is a short-sighted one. Religious expression can easily take the form of action against a customer (and against the interests of a business itself). It is only necessary to look at the various ‘Gay Cake’ dramas that have occurred across the United States and Western Europe to see that sometimes employees can take their religious beliefs beyond a point where they can be considered appropriate.

Religious Freedom at the Workplace

If an employee is willing to break company protocol to defend religious values based on charity, this is often different – think of a retail worker discounting food for poor families during Christmas. This is likely to adversely affect profits, but can generally be seen as good PR work, a way of forming a strong relationship between business and community.

However, if an employee is willing to break the law (and company protocol) to defend religious values based on bigotry, this is certainly not wise for the company (or for the employee themselves), and should certainly be a matter for the management to intervene in.

The observation of religious holidays should not normally bear issue for a major business – and in many countries, is protected by law – in the EU and the US, for example, a religious person cannot be fired from their job for observing a religious holiday or rest day – so a Jewish employee cannot be expected to work on their Sabbath, and thus the business must make arrangements for them to be off on these days. Most countries have laws that clearly define what does and doesn’t comprise religious discrimination – there are however longer religious observations that can be problematic.

The most obvious of these is Ramadan, the 6-week period of fasting and prayer considered compulsory for many Muslims. An employee being unable to eat or drink during daylight hours can be serious in many areas with adverse climate. Even in an air-conditioned office, with fantastic facilities, the inevitable drop-off in performance from an employee that has not eaten for up to 12 hours beforehand is something that a business needs to address.

Social Media plays a part in the complex dance of employers and employee rights as well. In the age of viral information and fake news, what should a business do with staff who consistently share, for example, anti-Muslim ‘news’ on social media platforms? Apostasy plays such a strong role in many religions, it can often be problems for employees that other colleagues are not of the same religious persuasion they are. While policing the thoughts of workers is understandably unacceptable, if the actions of individuals impact upon the morale and the contentment of other workers, it is time for a business to take a stand.

These problems are diverse in nature. Some have simple solutions. If an employee is being discriminatory, skipping an unreasonable number of days to observe even very minor religious holidays or acting in a manner that conflicts with legal precedents (for example, an employee insisting in wearing a burka in France), then disciplinary action can easily be justified with little risk to the employer of losing at a tribunal.

If the religious convictions of an employee are likely to conflict with the fundamentals of doing their job, then an action is warranted. Gary McFarlane, a marriage counselor in the UK lost a tribunal against unfair dismissal for suggesting that he would not provide marriage counseling for gay couples – which is a clear violation of his terms of employment.  Equally, the very high-profile case of Kim Davis in Kentucky (and others across the world, such as Lilian Ladele in the UK), clerical staff who refused to issue marriage licences to gay couples, as it conflicted with their deeply held Christian beliefs, are further examples of a business having a clear path to action against religious expression in the workplace.

There are harder cases to justify, however. The Cargill factory in Fort Morgan, Colorado fell afoul of religious freedom by trying to cut down on prayer breaks (or, according to the company, simply limit the number of workers walking out to pray at once), and ended up losing 150 staff to protests, all of whom were fired. The case is now with the EEOC. The row between British Airways and an employee who wished to visibly wear a crucifix was also a difficult one for the company, who had to weather weeks of adverse headlines, and a loss at the European Courts.

To resolve these issues, a business should be able to cater to ‘common’ religious requirements. A prayer room and sufficient facility within work protocols to allow a worker to pray is understandable and a simple fix to many common workplace religious issues.

The use of ‘essential’ religious iconography – modest crucifixes, turbans and so on, should not present a significant problem to the majority of employers. Turbans – often the most problematic of the religious headwear, have exemptions in most countries – even in the military and on building sites.

Setting out the religious freedoms that your business has to offer early on is beneficial to a business as well – if it is apparent at interview stage (or early on in employment) that an employee is especially religious, then an employer can lay out company policy, and what they expect early on in the employment process, which can often lead to potentially problematic candidates to decide not to seek employment at your business, avoiding the need for disciplinary or legal proceedings further down the line.

A company that conducts a ‘common sense’ policy towards to religious expression – that encourages small, personal displays of faith that do not impact on other workers, seems a company that has tackled the problem carefully. As for broader religious expressions – holidays, mass prayer and adverse behavior, a joined-up, clearly advertised protocol can go a long way to preventing the issues from becoming more significant than they need to be.

Priyansha Mistry
Currently editor at The HR Digest Magazine. She helps HR professionals identify issues with their talent management and employment law. | Priyansha tweets at @PriyanshaMistry

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