What’s in a name? Juxtaposing Indirect Discrimination and Reasonable Accommodation on the basis of Religion in the European Workplace
Harvard Human Rights Journal Online
On a final law school exam, I posed the following question: “Please describe in your own words what ‘indirect discrimination’ means and provide an example of such discrimination on the basis of religion or belief”.
The class was an upper level Anti-Discrimination Law class at the Catholic University of Leuven in Belgium, and the European law students taking the exam had been lectured on the concepts of direct and indirect discrimination in the frame of EU Directives on Discrimination in the workplace. Students had been lectured in an auditorium on the concept and various illustrations of religious discrimination in the workplace, including examples where workers were discriminated because of wearing religious dress/hijab, and with their facial expressions and body language indicated that they had a grasp on the concept and understood the examples.
However, if these law students’ answers to the prompt essay question are to be any indication, there remains much confusion and mystery surrounding the concept of indirect discrimination on the basis of religion (or on other bases). The concept is inherently complex and unintuitive, yet it is one which should be applied in everyday work situations by non-legal minds. If law students struggle to grasp the concept, how are we to expect HR professionals, trade union representatives, or individual employees to comprehend and apply a concept which is hard to grasp for the fledgling but focused legal mind? One EU scholar, Dagmar Schiek, raised the pertinent question: “[w]hy would a legislator introduce a concept as complicated as indirect discrimination?”
Elsewhere I have argued that the complexity (and pejorative meaning) of indirect discrimination presents another related concept – the duty to reasonably accommodate for employees’ religion of belief – a more effective tool for religious minority workers in Europe.
In this note, I want to build on this argument – my hope is that the juxtaposition with the concept of reasonable accommodation (which in the European framework is reserved for persons with disabilities. but in the US was first introduced in 1972 in the context of religious discrimination in Title VII of the Civil Rights Act of 1964) will bring out characteristics and weaknesses of indirect discrimination which then could be assessed and addressed.