Religious Freedom, Religious Discrimination and the Workplace (review)

Lucy Vickers’ commendable book deals with the gray area of religious rights in the workplace. The relevance and timeliness of this book are exemplified by the fact that employment is one area of life where religious believers are most likely to face discrimination or harassment.¹ Vickers presents a comprehensive critical study of fundamental religious rights and issues of religious discrimination in the workplace and translates her findings into usable benchmarks and guidelines.

Human rights law concerns the relationship between the state and individuals; it identifies states as the principal duty-bearers and individuals as the rights holders. This book addresses to what extent human rights norms extend to the workplace. This question can be subdivided into two key problems: does the state have a duty to guarantee freedom of religion or belief at work (which, if answered in the affirmative, could imply imposing certain norms and principles on employers), and to what extent do the norms of non-discrimination apply to the workplace (particularly considering the religious ethos of some organizations and employers)? If the latter two principles—freedom of religion or belief and the right to be free from religious discrimination—clash in practice, then which norm prevails? How does one balance these two norms appropriately?

For example, how does one judge an organization that, for religious reasons, solely hires persons of the same religion? If this policy can be considered a collective form of manifesting a religion (e.g., safeguarding a certain religious identity or certain religious precepts), it is not hard to see how two fundamental principles of human rights law can be at odds with each other in the context of work: the right to freedom of religion or belief versus the right not to be discriminated against on grounds of religion. Vickers describes this tension, noting that

the concepts of religious freedom and religious discrimination are clearly closely related: freedom of religion will be fettered with if its exercise leads to discrimination at work. Yet the right to religious freedom is not absolute, and limits placed on religious freedom in the context of work can be justified when necessary to protect the rights of others.²

Vickers begins the book by setting out the elements to make a convincing case for protection of religious freedom in the workplace. She does so in the context of the potent counterargument that the “right to religious freedom does not entail a right to be employed in the employment of the religious adherent’s choice, or a right to demand that any religious practice be accommodated.”³Vickers advances arguments based on equality, autonomy, and human dignity to argue that religious interests indeed warrant special human rights protection in the context of work. She concludes that a right to resign should not be the starting point in this discussion, but rather considered a residual form of protection in the concrete case that religious interests can indeed not be accommodated without doing serious harm to other legitimate interests. To that effect, Vickers elaborates on the important interests that are at stake such as economic benefits and non-economic benefits like social status. One particularly convincing argument is based on “equal access”:

The principle of equality demands that all people should have equal access to such benefits, and that life chances should not depend on holding a particular world view. Some people find it easy to access these benefits, because there is no incompatibility between their beliefs and employers’ requirements. . . . The most obvious example of religious practices which may be easier or more difficult to reconcile with work is in days of rest and the requirement to attend work during the normal working week.⁴

This type of example shows that a right to resign does not necessarily offer equal protection of legitimate interests in this context. The right to resign perfectly protects the forum internum, inner beliefs, of religious believers, but not the forum externum, that is, the freedom to practice or manifest those beliefs.⁵ Religious...