Abstract
This paper researches the issue of religious discrimination in the workplace – an increasing phenomenon reflecting the increasing diversity of the workforce. The key issues involved are discussed and researched by means of a literature review, taking particular note of the situations as affecting the smaller business organizations. Pertinent legislation and case examples are discussed, and the ways that employers might head off potential strife within their workforce arising due to religious differences. Those ways include making proactive efforts to accommodate the religious needs of individual workers, while at the same time explaining to their employees that the primary objectives must be business-related. It is noted that whilst the diversity of the workforce is increasing, restrictions on religious freedom in the workplace are increasing at the same time in many cases. The issue of religious harassment is noted as being of particular concern, and is likely to be more so in a small business, where it may be less easy to relocate people to avoid conflicts of that nature. The paper also includes questions arising from the research undertaken, and a Discussion section to consider the findings and to comment on the situation as it stands today.
Religious Discrimination: Key Issues in the Workplace in Small Businesses
Introduction
This research paper investigates the phenomenon of religious discrimination in the workplace, and particularly the issues that are involved for the smaller businesses. The issues include the effects on employees as well as the obligations on employers to reduce or obviate that discrimination within their business. It also looks at ways that employers can implement policies to accommodate the religious diversity that is inherent in today’s workforce, so achieving better employee relations and reducing the amount of staff turnover.
Purpose of the Study
The principal purpose of this study is to identify and discuss key issues involved in the potential religious discrimination that could occur in the workplace – particularly in the case of a small business – and to research how such discrimination can be obviated or at least minimized, and how employers can protect themselves by implementing certain policies.
Literature Review
In many countries and states, including the U.S., Great Britain and the European Union among others, there are legal provisions to protect employees (and employers) against religious discrimination in the workplace. However, according to studies like the one by the U.S.-based Pew Research Center (Markoe, 2012); “Religious believers throughout the world face a rising tide of restrictions.” Markoe states that the Pew study encompassing 197 countries indicated that in the timeframe of the study (mid-2009 to mid-2010) three quarters of the people in the world lived in countries having “high or very high restrictions on religious beliefs or practices.” That figure is approximately five percent up on the results of an earlier study by the same organization. The new study also revealed that in global terms the restrictions on religious freedom increased not just in those nations such as Nigeria and Indonesia where religious freedom was already very limited, but also in other, generally more liberal countries like the U.S. and Switzerland. In the U.S. specifically, the study cited incidents such as concerted opposition to the construction of a mosque in Murfreesboro, Tennessee and a sharp increase in complaints of religious discrimination in the workplace.
An incident in Great Britain in 2007 illustrated that legislation to protect against religious discrimination can produce unexpected outcomes (Cox, 2008). In the incident described, Amina Azmi, a Muslim female schoolteacher assistant, chose to wear the full-face veil while teaching her classes, “on the basis that some of the teachers with whom she worked were male.” She was dismissed from her job because she refused to teach without the veil, and decided to take the school to court on the grounds of religious discrimination. The court decided in the school’s favor, on the grounds that – as school officials had claimed – students need to see the facial expressions of their teacher, and that the veil thereby hindered the effectiveness of the teaching process. So, whilst the legislation exists to protect the rights of someone like Azmi to wear the veil for religious reasons, in this particular instance that right was overruled by the court because wearing the full-face veil rendered her (in the opinion of her employers and of the court) unable to properly perform the duties for which she was employed. As a British attorney noted, that decision did not affect the general principle, but was specific to the particular situation of the job she was employed to do.
This review by Cox of the book by Vickers (which deals primarily with the situations in the UK, the U.S., Canada, and the EU) also explains how the European Union’s Directive gives guidance to the EU member states for their domestic legislation in these matters. In the UK, where the required legislation has been implemented, the reports states that complaints made to employers are most frequently associated with: 1) refusing to give employees “time off for religious observances;” 2) denying permission to wear religious symbols; 3) exercising discrimination with regard to the “hiring, training, and promoting members of certain religions or beliefs.” Another – perhaps unexpected – consequence of the anti-discrimination legislation has been that certain religious groups have voiced their opposition to the anti-discriminatory legislation because they want to be free to hire, promote and fire employees exclusively of their own faith. Then there are other groups who on the basis of their religion want to be able to discriminate by not employing homosexuals or divorcees, or others who do not comply with the doctrines of their particular church. Although the UK legislation does actually allow room for some of those preferential variances, the religious aspects may be less significant than either sexual or racial considerations.
According to Cox, issues may arise within the individual workplace because of conflicts between religious and non-religious employees. For example, a non-religious person may consider his/her religious freedom to be infringed by constant religious “propaganda” from religious colleagues. Or someone wearing clothing dictated by their religion, (e.g. a woman’s Muslim head covering) may annoy other workers by wearing it, or may themselves be annoyed because such head covering is not worn by all the other women, too. Cox also notes that Vickers analyzes specific workplace difficulties arising from religious issues, such as where a specific religion accords women an inferior status to men. If the employer has employees of that particular faith (or is himself of the same faith) should he promote a woman above male colleagues, because she is actually the best person for the job? As the book’s author points out, a person can always resolve such issues by leaving the job, but in a modern society issues of a religious nature should not override important interests of a secular nature. Vickers states that: “The right to freedom of religion is granted extensive protection within international law, demonstrated by its inclusion in the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights.”
Cox’s review also discusses the issue of religious harassment in the workplace, and the most common form it; where a religious person insists on preaching to colleagues, even when they make it clear they object to the preaching. That is especially an issue if the person doing the preaching is in charge, or in a superior position to those he is addressing. There is a legal issue here – the boundary between having the freedom to practice one’s religion (the “preacher”) and the right to work without that unwelcome preaching. As with other issues in the area of religious discrimination in the workplace, harassment can be a greater problem in a small business, simply because of the working environment where there are fewer people and therefore less opportunity to avoid the person causing the harassment. In a larger business, management may be able to transfer individuals into other departments to move them away from the source of conflict. That may not be possible in a smaller organization.
Cox raises the distinction between the law in Canada and the law in the U.S. In Canada religious discrimination is classed as illegal, and the views of individuals typically take precedence over the general views of people of the same faith. The effect is that – according to Vickers – the law in Canada “places a heavier burden on employers to accommodate employees than US law”, although the courts generally expect a compromise to be reached wherever possible. It is often the case that employees of religious organizations can be dismissed for contravening the principles of the religion concerned. For example, an employee of a Catholic organization could be dismissed for marrying a divorced person or for engaging in an extramarital affair.
Other frequently occurring religious discrimination issues are where an employer refuses to give an employee time off for religious reasons (e.g. for worship or for prayer). Taking one example of such employee requirements, followers of Islam are required to pray five times each day – at dawn, noon, in the late afternoon, at dusk and finally at night (“Islam in the Workplace – suggested practice for HR personnel” 2013). This article stresses that HR professionals need to be aware of these and other cultural factors and sensitivities to ensure peace and harmony in the workplace and to avoid young Muslim men and women from seeking alternative employment because they are uncomfortable in their work environment. As regards the time for prayer – which the article suggests can take between five and 15 minutes on each occasion dependent on the individual – the ideal situation (space permitting) is to assign a quiet area for that purpose. Suggestions include an unused office or a medical facility, though such facilities may not be there in the case of many small businesses, in which case some creativity may be required. It is also a good idea to agree specific times for those individuals for their prayers (the ones that occur during their work shift), perhaps utilizing permitted break times wherever practicable. The article also notes that on Fridays the majority of Muslim men visit their mosque in the afternoon “for obligatory congregational prayers.” It is suggested that the requirement is accommodated by either extending their Friday lunch break (making up the time at other agreed time(s) in the working week) or assigning their Friday lunch break time to suit that requirement (the usual time for those Friday prayers are around 1:30pm). Clearly, this arrangement can be tricky to set up in a small business, especially if that person has a key role that requires their presence in the workplace at such times. Another issue – also applicable to the followers of Islam – is the practice of fasting. Devout Muslims may fast on Mondays and Thursdays through the year, and most Muslims fast for a month called Ramadan, which occurs at slightly different calendar times each year. Whilst that fasting should not be a factor in the workplace, it is advisable to make all workers aware of the situation, so as to avoid difficulties if there are lunch appointments or other activities involving food at those sensitive times. Food in general can also be an issue; the management of a business needs to be aware of specific dietary requirements, in order to avoid difficulties or embarrassment. Practicing Muslims for example have specific food restrictions and do not drink alcohol. Dress code is another issue that can be problematic, although in the case of Muslims (men and, in most cases, Muslim women) there are no especially strict guidelines, other than a head covering (hijab) for women. The men may feel their religion requires them to have a beard, so that should be taken into consideration. If hygiene is a particular issue in your business, be aware that beard covers can be purchased to resolve the difficulty. Another issue that many may not appreciate and understand is that for Muslims, touching between men and women is usually to be avoided. Shaking hands is an example. If unsure, it is advisable to allow the Muslim person to make the first move (or not).
Digh, (Nov. 2001) published an informative paper under the auspices of asae (The Center for Association Leadership), entitled “Religion In The Workplace: Make a Good-Faith Effort to Accommodate.” The paper is particularly useful as it includes an alphabetically-ordered list of just some of the more widespread religions in the United States, together with some explanatory notes about the significant features of each of the listed religions, which could be helpful information for employers and prospective employers. The essential message contained in the paper is that the increasing diversity of the U.S. workforce means that businesses and their HR professionals (where they exist) may need “to demonstrate greater sensitivity, tolerance and understanding of various religious beliefs.” Pointing out that there are now over 1500 religions in the U.S., of which over 900 are forms of Christianity, over 100 are Hindu-based and a further 75 are forms of Buddhism (as of 1996), Digh states that it is not surprising that religious discrimination claims are on the increase. The Federal response to this situation has been to propose an Amendment to the existing Civil Rights Act (1964) to force employers to give increased accommodation to the religious beliefs of their workers. As a consequence, employers will have to give better grounds for refusal to accommodate those beliefs in practical ways (like allowing time off); by defining what they consider as the “undue hardship” the business would be caused as a result. According to the paper, that definition of undue hardship would have to be based upon:
- The lost productivity costs (which could include retraining or transferring existing employees or hiring new, to do the work of the absent individual);
- Size of the business;
- How many employees would require that or similar accommodation;
- Difficulties / costs for businesses having more than one location.
The best way to deal with these issues is a preventative policy: to understand the requirements of the religions represented in the workforce and to take a respectful approach, which might include collaborative efforts to compromise on needs arising from particular religious affiliations. The following selections from the list of religions in the paper, give some indication of the diverse features that an employer may need to take into account and which could become issues of concern – particularly for a small business:
Baha’i: Originated in Iran and has about 110,000 followers in the U.S. Alcohol consumption and sex outside of marriage are forbidden. There 19 months each of 19 days in the Baha’i calendar, which includes a period of fasting between March 2nd to 20th, and nine “Holy Days” during which it is forbidden to work, three of which occur during the “Ridvan”, which is from April 21st to May 2nd.
Christian Science: Founded in 1879, this religion does not approve of alcohol, drugs or tobacco consumption and relies heavily on prayer for healing.
Hinduism: Many Hindus eat no meat and do not drink alcohol.
Islam: It is anticipated that by 2010, Islam will be the second largest religion in the U.S. Muslim women are not allowed to marry anyone other than a Muslim man. The religion is based on the so-called five pillars of Islam which are:
- “Bearing witness to the faith.
- Daily prayer, five times a day.
- One pilgrimage to Mecca.
- Fasting during Ramadan.
- Giving money to the poor.”
Mormonism: By popular standards the Mormon religion is conservative in nature. Mormons do not smoke or consume alcohol or caffeine, and the Mormon church “opposes abortion, divorce and premarital sex.” It also has a policy which involves members paying “tithes” to the church.
As the Digh paper suggests, although business owners should make reasonable efforts to accommodate the wishes and needs of the religions followed by their employees, they also should make it clear to those employees that the primary concern of any business is to achieve what Digh calls “business objectives.” One such could be a safety issue. If a person’s mode of religion-oriented dress made it unsafe to perform their job of operating machinery, that mode of dress must be prohibited in the workplace. As regards facilitating time off for observance of religious holidays, the paper suggests a measure such as posting a notice on the firm’s bulletin board asking for volunteers to swap shifts might be one solution. Other measures towards accommodating religion-based needs might include operating a flexitime system that allows staggered start/finish and break times, and a possibility to build up time for a complete day off. Also a routine that allows the occasional day worked through lunch to facilitate early departure could be helpful. Any or all of these measures could go a long way to accommodating the religious needs of employees without seriously inconveniencing the business. Also – particularly for small businesses – to help keep the business running when key people need help to follow their religious beliefs.
As regards legislation in the U.S., that previously-mentioned change affecting the Civil Rights Act of 1964 was embodied in federal legislation called Title VII (“Religious Discrimination in the Workplace (Title VII)”, n.d.). However, although Title VII “prohibits discrimination based on race, color, sex, religion, or national origin” it applies to private businesses “who have fifteen or more employees on their payroll for at least twenty weeks during a given year.” Hence, for smaller businesses, Title VII protection does not apply.
The UK organization Equality and Human Rights Commission (EHRC) published a guidance document entitled “An employer’s guide to Creating an inclusive workplace” (March 2010). Section 6 of that guide “Practical ideas for small businesses” (p.60), includes recommendations targeted specifically at the smaller businesses. These include involving all staff as far as possible in key issues (seek anonymous opinions if face-to-face meetings prove difficult), make sure that human rights policies are and fair, and if needed provide training. That may be particularly relevant if harassment is a possible issue. Indeed, the guide recommends a zero tolerance policy on that and on bullying and discrimination. That policy should be extended to recruitment, too.
McFarlin (n.d.) published an article in the Houston Chronicle entitled “How to Manage Religious Diversity in the Workplace.” She reiterates advice given in other literature reviewed, e.g. that all staff should be trained to understand what is acceptable behavior and therefore to avoid problems arising from religious discrimination, and – as mentioned elsewhere – to adopt a zero tolerance policy if religious discrimination does occur.
Gibson (Sep. 2013) writing in the Huffington Post (“Religion In Workplace Increasingly Diverse; Comes With Potential Pitfalls” discusses a perhaps unexpected area of potential religious conflict. He notes that in the increasingly diverse U.S. workplaces, what he refers to as a “potential flashpoint” is between white evangelicals and other Americans who are not affiliated to any religion. He cites a survey which reveals that evangelicals are much more likely to discuss their religious beliefs with work colleagues. That same research found that over 40 percent of the “nonbelievers” are uncomfortable discussing religion in the workplace. That could be a particular problem in a small business, where an evangelical employee has fewer people on which to impose his/her views, therefore increasing the likelihood of conflict.
An interesting short article published by the Nolo organization (n.d.) responds to the question “Do antidiscrimination laws apply to small businesses?” The answer given is: “If you have a really small business -- with only one to three employees -- you do not have to worry about the vast majority of antidiscrimination laws.” However, it does also state that “The major exception to this general rule is the federal Equal Pay Act, which applies to virtually all employers, regardless of size.” You should also check there are no local ordinances or state laws that may affect your business, although the great majority of those apply to businesses with five or more in the workforce.
Research Questions
Whilst this research has focused mainly on the U.S. and Europe, it would be interesting and enlightening to determine what laws exist in other countries; e.g. whether religious discrimination is treated in a similar manner around the world. Also, the gender aspects of religious discrimination could be interesting to evaluate. Also, it seems from the research that there is flexibility in the interpretation of the applicable laws in the U.S. and other countries, which suggests that with no hard and fast rules operating, one wonders if court decisions could be open to bias, particularly in favor of employers, who could conceivably be viewed more as part of the establishment than (say) an immigrant worker.
Discussion
Even though in the section above there is an expressed doubt about the fairness of the implementation of existing discrimination legislation, it is of course good that legislation exists at all. That is especially so for workers who feel they are being harassed for their religious affiliations or views, or for employers of small businesses who can protect themselves against possible litigation by implementing policies that accord with Title VII requirements (or other applicable legislation or regulations).
A perceived weakness in the overall situation is that the needs of a religion in terms of dress code, dietary requirements, prayers, etc. can be open to interpretation. For example, a Muslim female employee might insist on wearing the full-face veil in the workplace (as in the case mentioned by Cox earlier in this paper), even though the actual requirements of her religion might allow personal flexibility in that regard. The consequent gray area created does not make it any easier to determine the rights and wrongs of such an issue. However, it is good advice (as mentioned by Digh) for employers to do their best to accommodate the religious needs of the individuals in their workforce, in the interests of industrial harmony and reduced staff turnover levels. The increasing globalization in business and therefore the increased diversity of the workforce makes these accommodations ever more important, albeit the needs of the business must remain the primary objective of business owners. In the case of small businesses, not only can it be more difficult to avoid harassment situations by moving people around, but it has to be borne in mind that some of the legislation protecting the parties concerned does not apply to the very smallest businesses.
References:
“An employer’s guide to Creating an inclusive workplace” (March 2010). Equality and Human Rights Commission (EHRC). Retrieved from: http://www.equalityhumanrights.com/uploaded_files/publications/an_employer_s_guide_to_creating_an_inclusive_workplace.pdf
Cox, Gloria, C. (Reviewed: Nov. 2008). “Religious Freedom, Religious Discrimination, and the Workplace, by Lucy Vickers. Hart Publishing: Oxford, England, and Portland, Oregon, 2008.” Law & Politics Book Review: Vol. 18 No. 11 (November, 2008) pp.1029-1033. Retrieved from: http://www.lawcourts.org/LPBR/reviews/vickers1108.htm
Digh, Patricia. (Nov. 2001). “Religion In The Workplace: Make a Good-Faith Effort to Accommodate.” asae (The Center for Association Leadership). Retrieved from: http://www.asaecenter.org/Resources/whitepaperdetail.cfm?ItemNumber=12164
“Do antidiscrimination laws apply to small businesses?” (n.d.). Nolo. Retrieved from: http://www.nolo.com/legal-encyclopedia/preventing-employment-discrimination-faq-29111-2.html
Farber, Laura, V. (2010). “Discrimination in the Solo and Small Firm.” American Bar. Retrieved from: http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/farber.html
Gibson, David. (Sep. 2013). “Religion In Workplace Increasingly Diverse; Comes With Potential Pitfalls.” The Huffington Post. Retrieved from: http://www.huffingtonpost.com/2013/09/01/diversity-religion-workplace-increasing_n_3846021.html
“Islam in the Workplace – suggested practice for HR personnel.” (2013). Kwintessential. Retrieved from: http://www.kwintessential.co.uk/cultural-services/articles/islam-in-the-workplace.html
McFarlin, Kate. (n.d.). “How to Manage Religious Diversity in the Workplace.” Houston Chronicle. Retrieved from: http://smallbusiness.chron.com/manage-religious-diversity-workplace-10718.html
Markoe, Lauren. (Sep. 2012). “Report: Restrictions on religious freedom increasing worldwide.” Religion News Service, Pew Research Center. Retrieved from: http://www.faithstreet.com/onfaith/2012/09/21/report-restrictions-on-religious-freedom-increasing-worldwide/20123
“Religious Discrimination in the Workplace (Title VII).” (n.d.). American Center for Law and Justice. Retrieved from: http://aclj.org/workplace-rights/religious-discrimination-in-the-workplace-title-vii-
