Religious accommodation in the workplace

Religious accommodation in the workplace

1. Introduction

There are many facets to this discussion which in their own right can and should be the subject of specific articles in future newsletters. Not only is the topic important in its own right, but such discussions expatiate the broader meanings of "reasonable accommodation" measures, harassment (aside from sexual harassment), and the new addition to our equality laws, "hostile environment", concepts which have an impact on all other forms of discrimination.

It is fair to say that the principles underlying any such discussion should be premised on a respect for the diversity of employees and their beliefs, and an acknowledgement that an employee's faith, or absence thereof, must be treated with dignity and respect.

Discussions on religious accommodation usually address the following areas:

A. Religious expression in the workplace

B. Religious discrimination

C. Accommodation of religious exercise.

A. Religious Expression in the Workplace

Religious expression, being merely one component of religious accommodation, is a difficult issue and one, which the tragic events of Kosova, September 11th and the subsequent events in Bali brought sharply into focus. Religions in many senses have become polarised and any expression of an employee's religious beliefs invariably give rise anger, frustration, and at times, even hatred. Very rarely do they embody either the tolerance endorsed by the Constitution or for that matter even the underlying principles of "love and charity" espoused by the various faiths.

Some in our society want religious people to keep their convictions to themselves and leave their religion at home. The law, however, does not require that religious employees and employers check their religion at the office door or the factory gate when they come to work. To do so, would be impossible, and in a society which should celebrate its diversity, a serious indictment on us as South Africans, separate but part of the global community. Our recent history has demonstrated that as a nation, we can provide a mirror to other communities, which find it impossible to address tolerance, racial harmony and accommodation of diversity - even if at times, we fall short of "ourselves".

What is clear however is that the Constitution enshrines the belief in God. The preamble to the Constitution concludes with:

# May God protect our people

# Nkosi Sikelel' iAfrika

# Morena boloka setjhaba sa heso

# God seën Suid-Afrika

# God bless South Africa

# Mudzimu fhatutshedza Afurika

# Hosi katekisa Afrika.

The Bill of Rights further provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Religious observances may be conducted at state or state-aided institutions provided that:

(a) Those observances follow rules made by the appropriate public authorities

(b) They are conducted on an equitable basis

(c) Attendance at them is free and voluntary

On the other hand, the Bill of Rights further provides that everyone has the right to freedom of expression, and that this right does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

These principles and rights should be borne in mind when addressing the following elements of religious expression in the workplace:

>> Expression in private work areas

>> Expression among fellow employees

>> Expression directed at fellow employees

>> Expression in areas accessible to the public

In S v Lawrence 1997 (4) SA 1176 (CC), borrowing the concept of the 'essence of the concept of freedom of religion' from the Canadian courts, the Constitutional Court held that freedom of religion includes both the right to have a belief and to right to express such belief in practice. Without attempting to gloss over the important Constitutional principles which fall outside this short article, the key question seems to be "separating out what aspects of an activity are religious and protected by the Bill of Rights and what are secular and open to regulation in the ordinary way." (The Bill of Rights Handbook, De Waal et al, 2001). Any such debates are compounded by the prima facie conflict between weighing faith (fides) against those of reason (ratio).

Working guidelines on these areas are elaborated upon in the pro forma Workplace Policy on Religious Exercise and Religious Expression, based on experiences in other similar jurisdictions. Before proceeding to the Policy document, consider the case scenarios discussed in the guidelines and review how you would address these issues.

2. Religious discrimination

Discrimination on grounds of religion are a clear violation of the Bill of Rights as well as the Employment Equity Act, while dismissal based on an employer unfairly discriminating against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to religion, conscience, and / or belief, constitute one of the grounds of automatically unfair dismissal in terms of section 187 of the Labour Relations Act.

Occasionally, even employers are "guilty" of religious discrimination without realising it, for example, inviting or requiring employees to attend a Christmas function. The writer submits that such functions are in fact secular, are primarily regulated by corporate budgets (i.e. "can we afford" as opposed to "can we afford not to"), are invariably not religious (very rarely if ever do these corporate festivities commence with a sermon let alone a prayer) and can be easily substituted by simply calling them Year - End functions. To replace the "annual Christmas party" with a different nomenclature and making such functions voluntary would remove any claims of discrimination.

Religious discrimination may take various forms and are usually addressed under the following rubrics:-

>> Discrimination in Terms and Conditions of Employment

>> Coercion of Employee's Participation or Nonparticipation in Religious Activities

>> Hostile Work Environment and Harassment

Unlike the United State of America, in South Africa we did not have a general jurisprudence against a "hostile work environment" and "harassment" (other than sexual harassment) - at least until the promulgation of the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000). This unique Act is one, which in time, and with the establishment of the Equality Courts, will increasingly impact on workplace practices and delineate acceptable workplace practices from those that are unfair or discriminatory.

The definitions section of this Act defines harassment as:

"Unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to:

(a) Sex, gender or sexual orientation

(b) A person’s membership or presumed membership of a group identified by one or more of the prohibited grounds (which includes religion) or a characteristic associated with such group.

It is fair to say that most of the American (although our Constitutional Court seems to prefer Canadian practices more) jurisprudence on "hostile environment" will be imported into South African constitutional law. Whether particular conduct gives rise to a hostile environment, or constitutes impermissible religious harassment, will usually depend upon its frequency or repetitiveness, as well as its severity. The use of derogatory language in an assaultive manner can constitute statutory religious harassment if it is severe or invoked repeatedly. A single incident, if sufficiently abusive, might also constitute statutory harassment. However, although employees should always be guided by general principles of civility and workplace efficiency, a hostile environment is not created by the bare expression of speech with which some employees might disagree. In a country where freedom of speech and religion are guaranteed, citizens should expect to be exposed to ideas with which they disagree. That is surely the purpose of diversity awareness programmes.

It is now generally accepted that the Public Holidays Act and the Basic Conditions of Employment Act do discriminate on religious grounds in their requirement for observing Sunday's and the major Christian Holidays, especially as it relates to the equal treatment of religions. How the Constitutional Court or for that matter, the Labour Court tackles these issues remains to be seen. To simply rely on the concept of a "common day or days or rest" glosses over the real underlying Constitutional principles. The treatment of Sunday's and Christian Holidays primarily seems to be addressed in terms of the Limitation of Rights provisions of the Bill of Rights:

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-:

(a) The nature of the right

(b) The importance of the purpose of the limitation

(c) The nature and extent of the limitation

(d) The relation between the limitation and its purpose

(e) Less restrictive means to achieve the purpose

Nothing however prevents employers from making various accommodations for religious groups or amending employment policies and practices to recognise significant religious practices of the major religious groupings. The overriding consideration will always be whether such accommodations are commercially viable or practical. The reality is nevertheless that South African economic practices are based on the Christian calendar. Allowing employees to work on Sunday's instead of Saturdays or exchanging Christian holidays for other religious holidays is simply not economically practical if the Company does not trade on Sunday's or Public Holidays.

For the foreseeable future, companies will have to adopt those measures which best suite their operations, are practical, and best "fit" the culture which the company aspires to. Of course, the market / religious profile of the company's customers and the religious beliefs of its management team or owners will be determining factors.

3. Accommodation of religious exercise

As with the principles associated with "hostile environment and harassment", the concept of making reasonable the Promotion of Equality and Prevention of Unfair Discrimination Act also import accommodation into our equality jurisprudence. The proposed Equality Courts are in circumstances where they have found unfair discrimination, hate speech or harassment, empowered to make an appropriate order

>> Restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment

>> To make specific opportunities and privileges unfairly denied in the circumstances, available to the complainant in question

>> For the implementation of special measures to address the unfair discrimination, hate speech or harassment in question

>> An order directing the reasonable accommodation of a group or class of persons by the respondent;

The Employment Equity Act restricted to the concept of "reasonable accommodation" to any modification or adjustment to a job or to the working environment that will enable a person from a "designated group" to have access to or participate or advance in employment. The Promotion of Equality and Prevention of Unfair Discrimination Act goes beyond measures to accommodate designated groups only.

The focus of any discussions or cases on reasonable accommodation will invariably centre on its limitations. In the United States, for example, employers are required to accommodate employees' exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the Company's operations. Though a Company need not make an accommodation that will result in more than a de minimis cost to the Company, that cost or hardship nevertheless must be real rather than speculative or hypothetical: the accommodation should be made unless it would cause an actual cost to the Company or to other employees or an actual disruption of work, or unless it is otherwise barred by law.

In addition, religious accommodation cannot be disfavored vis-a-vis other, non-religious accommodations. Therefore, a religious accommodation cannot be denied if the Company regularly permits similar accommodations for non-religious purposes.

4. Establishment of religion

Supervisors and employees must not engage in activities or expression that a reasonable observer would interpret as a Company endorsement or denigration (that is the "establishment") of religion or a particular religion. Activities of employees need not be officially sanctioned in order to violate this principle; if, in all the circumstances, the activities would leave a reasonable observer with the impression that the Company was endorsing, sponsoring, or inhibiting religion generally or favoring or disfavoring a particular religion, they are not permissible. Diverse factors, such as the context of the expression or whether official channels of communication are used, are relevant to what a reasonable observer would conclude.

A practical example illustrates this principle better:

‘At the conclusion of each weekly staff meeting and before anyone leaves the room, an employee leads a prayer in which nearly all employees participate. All employees are required to attend the weekly meeting. The supervisor neither explicitly recognizes the prayer as an official function nor explicitly states that no one need participate in the prayer. This course of conduct is not permitted unless under all the circumstances a reasonable observer would conclude that the prayer was not officially endorsed.’

The prohibition against the "establishment of religion" is contained in the First Amendment to the US Constitution. In South Africa, the Constitutional Court expressly held that the Constitution did not include such an "establishment clause". The question then, is does such a practice as the one mentioned above violate other Constitutional or employment law practices. Could such practices, however, not fall under the broad definition of "harassment", provided it constitutes unwanted conduct, which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences. It is submitted that while the "establishment of religion" is not per se prohibited, it could constitute a particular species of harassment in certain circumstances.

While the Constitutional Court, the Labour Court as well as the proposed equality courts will be faced with many challenges in addressing religious accommodation, employers for the time being will have to "go it alone", adopting those measures which they consider acceptable, promotes diversity, does not overtly discriminate on grounds of religion and which cause the least disturbance to its operations and meet the needs of most of its employees. An interesting challenge!

Readers who wish to pursue this topics raised in this discussion may wish to read the working "Guidelines on Religious Freedom and Religious Expression in the Workplace". These Guidelines were issued by the President Clinton administration whilst in office, and address issues of religious expression and accommodation of religious practices, and forbid discrimination - for example, in hiring, firing, promoting or otherwise favoring or disfavoring employees - on the basis of their religion. They represent the most thorough resource on this topic to-date. The Guidelines may be viewed here