The Employment Law Review: Religious Discrimination in International Employment Law

I Introduction

Religion plays a critical role in the lives of individuals throughout the world. It influences the workplace, and employees are directly affected by the ways in which employers protect employees' religious beliefs. In an era when transnational corporations are key actors in the global economy, there is a heightened need for businesses to understand different national approaches to accommodating religion in the workplace. This chapter compares how the United States, France, Germany, Turkey, Saudi Arabia and India each manage religious discrimination in the workplace. In light of the legal debate surrounding the donning of headscarves in the workplace, discussion is included on the relationship between headscarf bans and religious discrimination in the workplace in each of these nations.

II United States

i Backdrop

The United States has long recognised the importance of freedom of religion. Early US history demonstrates that many of the original settlers were fleeing religious persecution and sought to challenge the degree to which religion should be integrated into politics. Thus, the US Constitution was written in the context of a deeply pluralist society. The notions of freedom of religion and separation of church and state developed early on and were enshrined in the First Amendment to the US Constitution.

The doctrine of religious accommodation in the workplace grew not only out of the Constitution but also out of the Civil Rights Movement of the 1950s and 1960s and the passing of Title VII of the Civil Rights Act of 1964. Title VII statutorily mandates that employers must accommodate religion in the workplace.2 For years, the Supreme Court has grappled with the correct application of the language of both the US Constitution and Title VII.

In a simple sense, religious freedom in the United States suggests both individual freedom of religion and overall freedom from state interference. Religious tests for political office are unconstitutional, there are no religious political parties and the government is proscribed from sponsoring or promoting any religious activity in public spaces. Simultaneously, a rich jurisprudence of case law concerning freedom of religion and the duty to accommodate religious beliefs in the workplace illustrates the commitment to an egalitarian society.

ii Laws

The First Amendment to the US Constitution provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof'.3 The first half of this sentence, known as the establishment clause, 'prevents the government from using its power to promote, advocate, or endorse any particular religious position'.4 The second part, known as the free exercise clause, specially protects religion from government interference.5

Title VII of the Civil Rights Act prohibits employers from discriminating against employees because of their religion.6 Additionally, employers cannot treat employees or job applicants more or less favourably with regard to hiring, firing and the terms and conditions of their employment on the basis of religious beliefs.7 Title VII also requires employers to 'reasonably accommodate' any religious beliefs or practices sincerely held by their employees that conflict with an employment requirement, unless the employer can show that the accommodation would cause undue hardship to its business.8

A 'reasonable' accommodation is any adjustment to the work environment that will allow the employee to practise his or her religion. These reasonable accommodations may include allowing flexible scheduling and voluntary substitutions or swaps of shifts, days off or job assignments. An employer can show undue hardship if accommodating an employee's religious practice requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.

iii Important cases

Under Title VII, employers are required to reasonably accommodate their employees' religious beliefs while still ensuring that an employee's religious acts or symbols do not offend others. In 1977, the Supreme Court elucidated the reasonable accommodation standard in Trans World Airlines Inc v. Hardison.9 The case involved an employee of a department that needed to remain open 365 days per year. However, the employee's religion required that he observe the Sabbath each Saturday. Owing to the seniority system in the collective bargaining agreement between the employer and the union, the employee was unable to select shifts that accommodated this. After refusing to work on Saturdays, he was fired for insubordination. The Supreme Court held that the company met its duty to accommodate, which does not require employers to breach contractual provisions.10 Specifically, the Court explained that Title VII does not require more than a de minimis cost to an employer.11

Although Hardison seemingly established a lenient standard for employers to meet so as to not accommodate an employee's religious beliefs, in practice, the doctrine has fluctuated over the decades. The Supreme Court discussed the nature of this duty in EEOC v. Abercrombie & Fitch Stores Inc.12 The case concerned a plaintiff who applied for a position at her local Abercrombie store. When attending an interview, she was wearing a headscarf but did not discuss her religious beliefs or her reasons for wearing a headscarf. Despite rating her as adequately qualified, Abercrombie refused to hire the plaintiff, assuming that it would need to accommodate her religious beliefs. The Supreme Court held that Abercrombie's actions violated Title VII.13 Furthermore, the Court explained that to prevail on a disparate treatment claim under Title VII, the applicant need only show that the need for an accommodation was 'a motivating' factor in the employer's decision, not that the employer actually knew of the need.14

III France

i Backdrop

As in the United States, France is committed to having a religiously neutral society and to maintaining the separation of church and state. This ideology was inherited from the French Revolution, which overhauled the Catholic establishment and instituted an anti-clerical state.15 Since then, France has maintained a secular national ideology to promote equality, tolerance and fairness to the French people, free from religious intrusion in the public space.16

The French word for its secular philosophy is laïcité. Laïcité requires a strict and formulaic interpretation of equality, under which the state is neutral and does not recognise the religious differences between citizens.17 Similarly, there is no concept of 'minority rights' or 'minority groups'.18 The overall aim of the system is to create a society with a strong individual sense of belonging to the French national community, as opposed to a specific racial, ethnic or religious community.19 Some scholars have described France's unique approach to religious liberty as the 'privatisation of an individual's faith',20 while others have argued that maintaining laïcité involves an irreconcilable encroachment on religious freedom, as it forces citizens to choose between religious fidelity and national loyalty.21

ii Laws

Article 1 of the 1958 French Constitution declares: 'France shall be an indivisible, secular, democratic and social Republic [and] shall ensure the equality of all citizens before the law, without distinction of . . . religion.'22 Thus, the French government is legally forbidden from recognising any religion.

As a member of the European Union, France abides by the principles of the 2000 EU Employment Equality Directive,23 which proscribes direct discrimination, indirect discrimination, harassment and victimisation at the workplace on the basis of religion.24 France also has signed the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention), which prescribes the right to 'freedom of thought, conscience and religion'.25 This includes the right to manifest one's beliefs or religion alone or with others in public or private through 'worship, teaching, practice, and observance'.26 However, the European Convention advises that this right may be limited to protect the 'rights and freedoms of others'.27 As such, in 2010, the National Assembly banned the wearing in public spaces of niqabs, burqas and other articles of clothing that conceal the face, finding the covering of the face to be 'incompatible with the values of the Republic' and contrary to the 'ideal of fraternity' and the 'minimum requirement of civility' that is 'necessary for social interaction'.28 Furthering the discourse on the ban on headscarves, the French Senate passed a law in 2019 banning mothers who chaperone school trips from wearing headscarves during the excursions. Although the law passed the Senate (by 186 to 100, with 159 senators abstaining), the law was rejected by the French parliament's lower house, the National Assembly.29

In 2021, France's National Assembly passed a law that the government says will protect the country against Islamist separatism.30 The law, among other things, will expand the 'neutrality principle' by forbidding 'all private contractors of public services' from sharing political opinions or wearing representations of their religion, increase surveillance of mosques, monitor mosque financing, increase oversight of training of imams, limit home-schooling, create new rules regarding online hate campaigns and provide an imprisonment penalty for intimidation of public servants for religious reasons.31 After the law was passed by France's Senate, the Constitutional Council deemed the law to be constitutional with modifications to only two provisions (regarding the withdrawal or rejection of residence permits for non-citizens who reject the principles of the Republic, and government authority to suspend associations facing an emergency dissolution procedure).32 Critics say that the draft law is Islamophobic and racist.33

iii Important cases

In 2014, SAS v. France was brought before the European Court of Human Rights (ECtHR). This case challenged the 2010 French law banning all facial coverings in public space.34 The applicant was a French woman of Pakistani origin who wore both the burqa, which covered her eyes, and the niqab, which covered all but her eyes. The ECtHR upheld France's national laws, finding that the laws did not violate any Articles in the European Convention. In addition, the Court explained that national authorities are better placed to evaluate local needs and conditions than international courts. Although not directly in the employment context, this outcome bolsters employers' ability to ban headscarves to maintain religiously neutral workplaces.

Two similar cases, Dogru v. France and Kervanci v. France, were decided by the ECtHR on 4 December 2008.35 The applicants, two French nationals, were enrolled in secondary school in France. During physical education classes, the applicants were asked to remove their headscarves on the premise that scarves were incompatible with sports. After refusing to take off their headscarves, the applicants were expelled from the school for breaching the duty of assiduity by failing to participate actively in the physical education classes. The ECtHR held that while the requirement to remove headscarves was a restriction on the right to freedom of religion under Article 9 of the European Convention, it was permissible in France, where the legitimate aim of the French government is to protect not only the rights and freedom of others but also public policy.

Two additional cases highlight the headscarf ban debate. First, in 2015, in Ebrahimian v. France, the ECtHR ruled against a French Muslim woman who claimed that workplace rules forcing her to remove her headscarf was discriminatory. Ms Ebrahimian, a hospital social worker, had repeatedly ignored requests to remove her headscarf and, as such, the hospital decided not to renew her contract. The ECtHR upheld the ban on public sector employees wearing headscarves and other religious symbols, concluding that it did not violate freedom of religion under Article 9 of the European Convention because Article 1 of the French Constitution specifically provides for the principles of secularism and strict religious neutrality on public officials in discharging their functions.

Second, in 2016, in Bougnaoui v. Microple SA, a Muslim woman employed by a private-sector French IT consultancy was dismissed because she refused to remove her headscarf. The French Court of Cassation asked the Court of Justice of the European Union (CJEU) whether, under EU anti-discrimination rules, a requirement not to wear a headscarf during employment was discriminatory. An Advocate General for the Court of Justice ruled that, specifically in the private sector, the dismissal amounted to direct discrimination because Ms Bougnaoui was treated less favourably on the grounds of her religion and there was nothing to suggest that she was unable to perform her duties because she wore a headscarf. The Advocate General also observed that a company policy imposing an entirely neutral dress code would be likely to result in indirect discrimination as well, unless the policy pursued a legitimate aim and was proportionate.

Notably, however, in 2017, the CJEU considered the case, but was asked to decide whether an employer's enforcement of the wishes of a customer who does not want to work with an employee wearing a headscarf constitutes a 'genuine and determining occupational requirement' under the EU Employment Equality Directive. When an employer's internal policy results in different treatment of persons of different religions because of the nature of the occupational activities, the policy is not discriminatory as the subject characteristic is a 'genuine and determining' requirement of the position. The CJEU ruled that the employer's willingness to take the customer's wishes into account cannot be considered a 'genuine and determining occupational requirement' as it was not related to occupational activities but to a characteristic of religion.

IV Germany

i Backdrop

As with France and the United States, Germany supports the separation of church and state and adopts a policy of state neutrality.36 Germany's method of achieving state neutrality is largely shaped by its history and the dramatic change in its population since the mid 20th century. In 1950, more than 96 per cent of the population in the Federal Republic of Germany belonged to one of the major Christian confessions.37 However, since the 1960s, there has been a steady migration of Muslims from Turkey and various Arab countries into Germany. It is estimated that Muslims make up at least 6 per cent of Germany's population and that this will rise to approximately 8.7 per cent by 2050.38 Consequently, the importance of all non-Christian religions, and in particular Islam, is rapidly increasing.

Although xenophobia has existed in Germany for centuries, certain reports suggest that, since the turn of the 21st century, there has been a shift from general xenophobia to a more anti-Islamic attitude.39 The German Interior Ministry reports that police recorded more than 900 Islamophobic crimes in 2020.40 This may be due in part to developments in work politics, debates on terrorism and security, and Islamism.41 Nonetheless, Germany neither strictly opposes state and religious communities nor entirely separates itself from them.42 Rather, Germany instructs authorities to assist and support the various denominations.43

The German Constitution grants religious groups considerable autonomy because all religious societies regulate and administer their affairs independently within the limits of the law.44 This autonomy allows each religious group to define what is legitimately classified as religion and religiously connoted behaviour, and positions the government equally distant from all religious communities.45 However, the Constitution still allows the state to intervene and conduct a 'plausibility check' if it believes that a group is misusing this freedom.46

ii Laws

Germany's Constitution mandates that each of the 16 federal states remains neutral towards religion.47 Article 3 explains: 'No person shall be favoured or disfavoured because of their gender, parentage, race, language, homeland and origin, faith, or religious or political opinions.'48 In addition, Article 4 lays out the individual right to religious freedom and obliges the state to respect the religious activities of its citizens and to secure their free development.49

Germany's constitutional mandate of neutrality only applies to public sector employers.50 Similarly, decisions of the Federal Constitutional Court are legally binding on public authorities.51 Thus, private sector employees are not absolutely protected by the federal German employment discrimination laws, although they may be protected when civil law judges interpret the general constitutional clauses under civil law.52

There is some private sector recourse available under Section 75 of the Works Constitution Act.53 Under this Act, employers and works councils must ensure that all employees are treated in conformity with the principles of law and fairness and, in particular, that no employee is discriminated against 'on grounds of race, ethnic origin, descent or other origin, nationality, religion or belief, disability, age, political or trade union activities or convictions, or on the grounds of gender or sexual identity'.54 The Works Constitution Act applies to all private sector companies in which a works council must be founded.55 The Act does not apply to discrimination in recruitment but instead only to discriminatory treatment of current employees.56 It also does 'not apply to companies and establishments that directly and predominantly pursue political, coalition, religious, charitable, educational, scientific or artistic objectives'.57 With such broad exemptions, private sector employees often lack legal recourse beyond invoking the employer's general obligation to take care of its employees.58

In 2017, the German parliament approved a partial headscarf ban, which would prohibit civil servants, judges and soldiers from wearing full-face veils (including the burqa and niqab) while at work. Also in 2017, the upper house of the German parliament approved legislation that prohibits drivers from having their faces completely or even partially covered, which has been interpreted as a burqa ban.

iii Important cases

In 2016, a German court found that a Muslim law trainee had the right to wear a headscarf while working. In this case, Aqilah Sandhu began a traineeship with the Bavarian judicial system after completing her state law examinations but was told in a letter that she was not allowed to interrogate witnesses or appear in courtrooms while wearing her headscarf. Sandhu requested an explanation for the rule and was informed that religious clothing or symbols 'can impair the trust in religious neutrality of the administration of justice'. The German court agreed with Sandhu that there was no legal basis for banning her from wearing religious dress at work.

In addition, two related cases reflect the current trend of religious discrimination in the German workplace. One of these concerned a teacher wearing a headscarf.59 The Federal Constitutional Court held that public school teachers could not be prohibited from wearing headscarves at work so long as the federal states in which they taught did not have laws specifically banning the display of religious symbols in public classrooms.60 The immediate consequence of the decision was that several German states immediately enacted laws forbidding teachers from wearing religious symbols in classrooms.61

However, subsequently, the Federal Constitutional Court arrived at the opposite conclusion.62 In 2015, the Court held that prohibiting a teacher or social worker from wearing a headscarf in a public school violated Articles 3 and 4 of the German Constitution and unjustifiably interfered with an individual's freedom of religion. The Court reasoned that, despite the state's legitimate desires to achieve religious neutrality and to secure the educational rights of all its citizens, a ban on all headscarves was a disproportionate measure to achieve those goals. It explained that any general ban on visible religious symbols or clothing, such as headscarves, kippas and nuns' or monks' habits violates the right to freedom of religion.63 Despite the Federal Constitutional Court's shift in ideology, however, some lower courts' rulings continue to support prohibiting headscarves in the workplace.

In 2021, the European Court of Justice affirmed a 2017 ruling that religious dress in the workplace may be restricted if the restrictions are applied in a consistent manner. The Court ruled in response to cases brought by two Muslim women in Germany who were suspended from their employment for wearing a headscarf and whose cases will now be decided by German courts.64 The European Court of Justice held that banning employees from 'wearing any visible form of expression of political, philosophical or religious beliefs in the workplace[,] may be justified by the employer's desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users'.65 Yet any such restrictions must be in response to a genuine need of the employer (which the employer must prove), must be limited to what is strictly necessary and must be appropriate for ensuring the employer's neutrality policy.66

V Turkey

i Backdrop

Unlike nearly all majority-Muslim states, Turkey has a strictly secular system of governance that controls all religious activity.67 This ideology can be traced back to a few key periods. First are the Tanzimât reforms that were enacted during the Ottoman Empire.68 During these reforms, the phrase 'religion of the state is Islam' was removed from the Turkish Constitution of 1924.69 Subsequently, in reforms implemented by Turkey's first president, Mustafa Kemal Atatürk, during the Second Constitutional Era, the nation officially adopted a democratic and secular ideology known as Kemalism.70 Finally, nine years after its introduction, laiklik (derived from the French laïcité) was explicitly established in Article 2 of the Turkish Constitution.

Although the notion of laiklik came from France, in Turkey, it does not call for a strict separation of religion and the state, but rather describes the state's stance as one of 'active secularism'.71 For this reason, the Constitution contains a number of affirmative government duties to restrict religious expression. For example, Article 136 of the current Constitution establishes the Presidency of Religious Affairs,72 which is mandated to 'offer services according to the principles of citizenship without distinction of sect, understanding and practice regarding religion'.73 Additionally, the Presidency of Religious Affairs appoints and pays all prayer leaders (a'immah) and preachers (hatips).74

ii Laws

The current Turkish Constitution was adopted in 1982. Article 2 lays out the nation's secular ideology75 and Article 10 protects citizens from discrimination on the basis of religion.76 These provisions of the Constitution provide similar protections of religious freedom to many Western constitutions. In addition, Turkey's secularism resembles that of France, insofar as it restricts religious expression in public. However, unlike both France and the United States, Turkey permits considerable affirmative government influence in religious activities.77 Under President Recep Tayyip Erdoğan, the government continues to limit the rights of non-Muslim religious minorities.78

In addition to Turkey's secular constitutional provisions, in the public sphere, the By-law on the Garments of Public Personnel covers officials and workers employed in the public sector because the prevalent idea is that they must represent state neutrality and, as such, public officials and public sector workers must conform to specific dress codes.79 Thus, both men and women are prohibited from wearing religious garments or symbols in the workplace and are required to work bareheaded. Women who work in the public sphere generally cannot wear Islamic outfits, including hijabs, niqabs and burqas.80 In recent years, however, the headscarf ban in Turkey has largely been lifted in certain sectors and for certain people, including on university and high school campuses, in some state institutions and for female police and army officers.

Article 5 of the Labour Act of 2003 contains the most extensive provision prohibiting discrimination.81 This Article regulates the principle of equal treatment, prohibiting discrimination on the basis of race, gender, language, religion and sect, political opinion or philosophical belief, among other things.82 However, the Labour Act does not impose a duty of non-discrimination on hiring in the private sphere.83 Similarly, there is no duty on employers to make reasonable accommodations for the religious needs of staff.84 Although government oversight of private employer activities is slightly more relaxed, the government still employs a number of agencies to regulate religious activity in nearly any context. Thus, the Constitution's secularism pervades both the public and private spheres.

iii Important cases

One of the most important Turkish cases surrounding the headscarf debate occurred in 2005. Sahin v. Turkey85 was heard before the ECtHR but was largely influenced by the 1989 decisions of the Turkish Constitutional Court. The Sahin case involved a medical student who challenged the Turkish bans on wearing Islamic headscarves at universities and state institutions. The Court explained that headscarf bans in schools and public places do not breach the religious freedom of individuals, and held that fundamental freedoms are not violated when a secular country bans the wearing of religious clothing in institutions of higher education. Although the case involved an educational setting, and not an employment setting, it had important implications for headscarf bans in the workplace, as it bolstered general Turkish secularism.

The holding in Sahin is consistent with another ECtHR holding, in Karaduman v. Turkey,86 in which a Turkish university student was denied a certificate of graduation because the school required a photograph of her without a headscarf and she refused to be photographed without one. The Court found that the state was entitled to place restrictions on the wearing of a headscarf if it was incompatible with the goal of protecting the rights and freedoms of others, public policy and public safety. As such, the Court held that, under Article 9 of the European Convention on Human Rights, the university did not violate the student's right to freedom of religion.87

These decisions indicate why Turkish courts are likely to find that an employer's desire to have a politically neutral workplace outweighs employees' freedom in respect of dress and religious expression.88

VI Saudi Arabia

i Backdrop

The Kingdom of Saudi Arabia is a political monarchy currently ruled by King Salman bin Abdulaziz Al Saud, whose father unified the country in the early 20th century.89 Since 2017, power has been concentrated in the hands of crown prince Mohammed bin Salman, one of King Salman's sons.90 As the birthplace of Islam, Saudi Arabia is one of the most traditional Muslim societies in the world. Islam is not only a central aspect of the nation's historical identity but also the basis of the legal system, political system and social outlook.91

The governing legal system is known as shariah law (shariah) and it is deeply rooted in traditional Islamic law.92 Shariah is based on religious texts and works of Muslim jurists and Muslim states during the past 15 centuries.93 Adherents of shariah believe that law and religion overlap and that 'law in Islam is divine, sacred and comprehensive'.94 Consequently, national policies do not legally recognise or protect religious freedom.95

ii Laws

Shariah combines the Hanbali School of Law and the Wahhabi Doctrine.96 The Hanbali School is the official school of Islamic law for the courts of Saudi Arabia, under which judges have the discretion to make rulings according to understandings derived from shariah or other schools of Islam.97 Ultimately, Saudi judges are constrained 'solely by their own conscience in determining the will of God'.98 The Wahhabi Doctrine opposes innovation in religion and rejects interpretations of law and religion that are not based on sources of law drawn from traditional texts.99

In 1992, King Abd al-Aziz attempted to create a more modern legal system and enacted the Basic Law of Governance.100 However, it was drafted in the absence of any public debate and there was no referendum to ratify it.101 Article 1 of this law explains that the Constitution of the Saudi Kingdom is 'the book of God and the Sunna (Traditions) of his Messenger'.102 Article 5 establishes that Saudi Arabia is a monarchy and that rule is limited to the sons of the founder, King Abd al-Aziz, and the sons of his sons.103 Article 44 describes some separation of powers, with the caveat that the King shall be the final authority over the three branches of government.104

The state prohibits public practice of any religion other than Islam.105 The law severely restricts all forms of public religious expression other than its own interpretation and enforcement of Islam.106 Some restrictions have loosened since crown prince Mohammed bin Salman's appointment as heir to the throne in 2017; women are no longer required to wear a headscarf and a long cloak (abaya) covering the entire body, head and face at all times, and are now permitted to be in public without having to be accompanied by a male relative.107 Although mixed-gender workspaces are now permitted, there must be at least two female employees and adequate security cameras in mixed-gender workspaces, as well as segregated spaces for any female employees who request one.108 Gender segregation continues to be widely practised in workplaces and restaurants,109 although religious police were stripped of their power to arrest in 2016.110

In shariah courts, a woman's testimony is only worth half that of a man's testimony in capital punishment cases.111 This effectively means that the burden of proof is much higher for women than it is for men. In divorce and family law cases, women must generally deputise male relatives to speak on their behalf.112 In other types of cases, such as adultery and rape cases, women are required to solicit either four male witnesses or a direct confession by the perpetrator.113 Although women often ask male relatives to speak on their behalf, these burdensome evidentiary standards frequently discourage women from attempting to seek legal recourse at all.

Certain reports suggest that there have been some improvements for women in the workplace since 2005, when Saudi Arabia overhauled its labour laws and instituted special labour courts to adjudicate labour complaints.114 Crown prince Mohammed bin Salman has pledged a plan of social liberalisation, promising that the country will return 'to the tolerant, moderate Islam that is open to the world, to all religions and traditions of its people'.115 The ban on women driving was lifted in June 2018.116 Liberalisation efforts include encouraging women to join the workforce, although there is still a system of male guardianship, among other restrictions.117 Despite the promises of liberalisation, Saudi Arabia is still designated as a Country of Particular Concern under the International Religious Freedom Act (most recently redesignated in November 2021) in view of its engagement in, or tolerance of, particularly severe violations of religious freedom.118

iii Important cases

Although women's participation in the labour force has almost doubled in the past five years, women in the workplace still face a host of challenges under shariah law and cultural norms.119 Until recently, workplaces were completely segregated by gender, with women subject to harsh penalties for intentionally or accidentally mingling with men in the workplace, even if the mingling was the result of a man's actions.

In one instance, a woman was convicted of illegal mingling after her employer entered the women's section of the workplace.120 At trial, the judge did not address the woman's allegation that her employer raped her. Despite inconclusive evidence as to what transpired, the woman was sentenced to 70 lashes and deportation for failing to complain that her employer had entered the women's section.121 Similarly, Saudi Arabia criminalises contact between unmarried individuals of the opposite sex, which places rape victims at risk of prosecution for illegal mingling as well.122 In the high-profile Qatif case, a court convicted a victim of gang rape of illegal mingling and blamed her for going out alone.123

VII India

i Backdrop

India gained independence from Britain in 1947 and enacted its Constitution in 1950. Pre-colonial Indian society was organised by the caste system, which segregated the population by inherited social status. In the 21st century, India has been making drastic efforts to overcome the bleak legacy of its caste system and to build a more egalitarian society.124 To advance this goal, it has enacted a large-scale affirmative action programme known as a reservation system (also known as compensatory discrimination or quota programme) that applies to the public sector, civil service and state and private educational institutions.125

The reservation system is designed to promote minority populations and historically oppressed groups. Under the system, a proportion of jobs (which cannot exceed 50 per cent) are reserved for 'backward communities', 'scheduled castes' and 'scheduled tribes' as defined by the government.126 Individuals who belong to one of these disadvantaged minority groups may be able to enter public posts more easily and enjoy relaxed promotion requirements.127

ii Laws

India's Constitution is arguably the most comprehensive in the world. It contains almost 400 articles, numerous annexes and has been amended more than 100 times.128 The Preamble defines India as 'a sovereign socialist secular democratic republic'. India has ratified the International Labour Organization's 1958 Discrimination Convention and 'thus agreed to pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination'.129 There is also an Equal Opportunity Commission, which reviews grievances of deprived groups and correlates them to a diversity index to ensure equal opportunities in education, governance, private employment and housing, among other things.130

Article 14 of the Constitution establishes equal protection.131 Article 15 contains the non-discrimination principle on the basis of religion, race, caste, gender and place of birth that specifically applies to 'access to shops, public restaurants, hotels and places of public entertainment'.132 Article 16 establishes the principles of equality of opportunity and non-discrimination in public employment but allows for reservations for backward classes.133 Article 38 urges the state to minimise inequalities in income and status, and Article 46 promotes the educational and economic interests of weaker sections of society, in particular the scheduled castes and scheduled tribes.134

Notably, the Indian private sector is not subject to the reservation system.135 Article 17 is the only provision that binds both the public and private sectors, and the Article outlaws untouchability and forbids its practice in any form.136 As such, only victims suffering a discriminatory act by a public body can seek constitutional legal remedies.137 Increasingly, religious minorities, including Muslims, have been facing extensive discrimination, including violence.138 The rise in violence against non-Hindu Indians is attributed to the rise of the Bhatatiya Janata Party, India's Hindu nationalist party.139 In December 2019, the Modi administration passed the Citizenship (Amendment) Act (CAA), which provides preference for non-Muslims seeking Indian citizenship.140 As at December 2021, the CAA has not yet been implemented.141 The CAA, coupled with the Modi government's push for national citizenship verification and registration systems, has increased discriminatory violence against and distress of Muslims in India.142 Raveesh Kumar, a spokesman for the Ministry of External Affairs, rejected a US report that discussed the increased discrimination. Mr Kumar stated: 'India is proud of its secular credentials, and its status as the largest democracy and a pluralistic society with a long-standing commitment to tolerance and inclusion.'143

iii Important cases

In 1963, the Supreme Court of India, in Balaji v. State of Mysore, held that the sum of reservations generally could not exceed 50 per cent.144 In 1976, in State of Kerala v. Thomas, the reservation system was again contested.145 State of Kerala involved government jobs for which the government decided to exempt members of the backward castes from taking mandatory tests to gain promotions. The Supreme Court upheld these policies under the Constitution. The case granted the government broad flexibility in designing and implementing affirmative action programmes and reflected India's persevering ideology that affirmative action is not only constitutional but also necessary to uplift disadvantaged communities.

As India's reservation system does not apply to private sector jobs, private sector workers do not have anywhere near as much protection from religious discrimination as those members of the designated backward castes in the public sector. Recent stories illustrate that private sector employers have essentially no obligation to refrain from direct or indirect discrimination on the basis of religion.146 For example, a Muslim Mumbai resident and MBA graduate who applied for a job at a private diamond export firm was denied the job because the firm only hired non-Muslims.147 Under present Indian laws, the student has no legal recourse against the firm's discriminatory policies.148 This story highlights how India's lack of laws prohibiting private sector employers from direct religious discrimination is in sharp contrast to the United States and most of Europe.

VIII Conclusion

Although employers around the globe must deal with religious discrimination in the workplace, employers' approaches in different nations vary greatly. This variance is largely a consequence of each nation's unique history, which profoundly influences the political philosophies and legal systems.

It makes sense that in the United States, a nation founded by many settlers who fled religious persecution, religious freedom laws are broad and strive to maintain a pluralist society. Similarly, when looking at India's past history with the caste system, one can understand the sensibility of a large-scale quota programme, designed to ensure that disadvantaged classes have the opportunity to gain additional employment opportunities. For similar reasons, Saudi Arabia's complete integration of religion and the state, while strikingly different from many Western nations, corresponds closely to its history as the birthplace of Islam.

Interestingly, France, Germany and Turkey all share similar ideologies with regard to the predominantly neutral role that the state should play in regulating religion and yet each nation implements state neutrality differently. The French notion of laïcité mandates that the government refrains from taking any stance on religious ideas; the Turkish notion of laiklik allows for considerable government involvement; and the German notion of neutrality builds in safeguards so that the state and religious organisations can cooperate when necessary.

Although each nation's employment laws reflect its own history and societal views, the consequences of religious discrimination in the workplace often spread beyond the workplace. Thus, when addressing sensitive issues, such as how to accommodate headscarves in the workplace, modern businesses should be cognisant of both the nuanced cultures in which they operate and the potentially wider and long-term effects of their policies. In the global business environment, the challenge for companies will be to adequately accommodate their employees' core values, yet respect national sovereignty and cultural identities.


1 Erika C Collins is a partner at Faegre Drinker Biddle & Reath LLP. The author extends special thanks to Katherine Gordon, an associate at Faegre Drinker Biddle & Reath LLP, for her contributions to this chapter.

2 Title VII of the Civil Rights Act of 1964, 42 USC § 2000e(j) (2010).

3 US Constitution Amendment I.

4 Michael W McConnell (2000), 'The Problem of Singling Out Religion', DePaul Law Review, 50(1): 43.

5 id.

6 42 USC § 2000e-2.

7 42 USC § 2000e-2(a)(1)-(2).

8 42 USC § 2000e(j).

9 Trans World Airlines Inc v. Hardison, 432 US 63 (1977).

10 ibid., at 81 ('It would be anomalous to conclude that by “reasonable accommodation” Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others').

11 ibid., at 84 ('To require TWA to bear more than a de minimis cost . . . is an undue hardship').

12 EEOC v. Abercrombie & Fitch Stores Inc, 575 US 768 (2015).

13 ibid., at 2033.

14 id.

15 Derek H Davis (2004), 'Reacting to France's Ban: Headscarves and other Religious Attire in American Public Schools, Journal of Church and State 46: 221, 221.

16 id.

17 Frederick M Gedicks (2006), 'Religious Exemptions, Formal Neutrality, and Laïcité', Indiana Journal of Global Legal Studies 13: 473, 475.

18 See Erik Bleich, 'Race Policy in France' (2001), Brookings Institute, (last accessed 8 December 2020).

19 See generally, Patrick Simon, 'French National Identity and Integration: Who Belongs to the National Community?' Transatlantic Council on Migration (May 2012).

20 Bruce Crumley, 'Too Muslim to be French?', Time Magazine (12 July 2008),,8599,1822189,00.html (last accessed 8 December 2020).

21 Lucy Vickers, 'Religion and Belief Discrimination in Employment – the EU Law', Directorate-General for Employment, Social Affairs and Equal Opportunities (European Commission) (2007), 40.

22 1958 Constitution 1 (France).

23 Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation, 2000 OJ (L 303/16).

24 In Article 2(2)(a), Article 2(2)(b), (Article 2(3) and Article 11 respectively.

25 European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), Article 9, 4 November 1950.

26 See Gedicks, op. cit., at 477.

27 id.

28 See Martin Wählisch, 'ECHR Chamber Judgment Case of S.A.S. v. France: Banning of burqas and niqabs legal?', Cambridge International Law Journal (21 July 2014), (last accessed 8 December 2020). However, in 2018, the United Nations Human Rights Committee found that France's niqab and burqa ban violated Muslim women's human rights. 'French “burqa ban” violates human rights, rules UN committee',,'burqa%20ban'%20violates%20human%20rights%2C%20rules%20UN%20committee&text=In%20a%20landmark%20decision%20on,freedom%20rights%20of%20Muslim%20women (last accessed 8 December 2020).

29 Jon Stone, 'French Senate votes to ban mothers who wear headscarves from accompanying children on school trips', Independent (17 May 2019), (last accessed 8 December 2020).

30 'Why Has France's Islamist Separatism Bill Caused Such Controversy?', Foreign Policy (23 February, 2021), (last accessed 13 December 2021).

31 'New French law may increase discrimination',, (last accessed 21 December, 2020).

32 'France's anti-separatism bill deemed constitutional with only minor changes', RFI (14 August 2021), (last accessed 13 December, 2021).

33 'France Considers A Law To Curb What It Views As Islamist Extremism', NPR (26 November 2020), (last accessed 21 December 2020).

34 SAS v. France, App No. 43835/11, 2014 ECtHR.

35 Dogru v. France, App No. 27058/05, 2008 ECtHR; Kervanci v. France, App No. 31645/04, 2008 ECtHR.

36 Davis, op. cit., at 222.

37 Stefan Korioth and Ino Augsberg, 'Religion and the Secular State in Germany', German National Reports to the 18th International Congress of Comparative Law (2010), 320.

38 'The Growth of Germany's Muslim Population', Pew Research Center (29 November 2017), (last accessed 8 December 2020).

39 Hakan Tosuner, 'Germany: Discrimination of Muslims in employment in Germany', Tolerance Research Project at Centre for Social Studies, Associate Laboratory University of Coimbra, 5, (last accessed 8 December 2020).

40 Ayhan Simsek, 'Germany sees rise in Islamophobic crimes', Anadolu Agency (8 February 2021), (last accessed 13 December 2021).

41 Ayhan Simsek, 'Germany reports 188 Islamophobic crimes in 3 months', Anadolu Agency (8 October 2020), (last accessed 8 December 2020).

42 Korioth and Augsberg, op. cit., at 325.

43 id.

44 Basic Law for the Federal Republic of Germany [Basic Law], 23 May 1949, Article 140, BGBL. I 140.

45 Korioth and Augsberg, op. cit., at 323.

46 id.

47 Basic Law, op. cit., Articles 3 and 4.

48 ibid., at Article 3.

49 ibid., at Article 4; see also Korioth and Augsberg, op. cit., at 322.

50 Raphael Won-Pil Suh and Richard Bales, 'German and European Employment Discrimination Policy', Oregon Review of International Law (2006), 8: 263, 271.

51 id.

52 id.

53 Works Constitution Act, 15 January 1972, BGBl I Section 75.

54 id.

55 These are companies with at least five permanent employees. See Suh and Bales, op. cit., at 273.

56 id.

57 Works Constitution Act, op. cit., at Section 118(1).

58 Suh and Bales, op. cit., at 273.

59 Federal Constitutional Court, 24 September 2003, BVERFGE 108, 282, 300 (in German).

60 id.

61 Korioth and Augsberg, op. cit., at 326.

62 Federal Constitutional Court, 27 January 2015, Cases Nos. 1 BvR 471/10 and 1 BvR 1181/10 (in German).

63 id.

64 'EU court allows conditional headscarves bans at work', DW (15 July 2021), (last accessed 13 December 2021).

65 2021/C 349/02 Judgment of the Court (Grand Chamber) (15 July 2021),

66 id.

67 Constitution of Turkey, Article 2.

68 William L Cleveland and Martin Bunton, A History of the Modern Middle East (2009), 82.

69 Özlem Kaya, 'On the Way to a New Constitution in Turkey: Constitutional History, Political Parties and Civil Platforms', Friedrich Ebert Stiftung (October 2011), (last accessed 8 December 2020).

70 'Atatürk's reforms', All About Turkey (2015), (last accessed 8 December 2020).

71 'Turkey: AKP's Hidden Agenda or a Different Vision of Secularism?', Nouvelle Europe (7 April 2011), (last accessed 8 December 2020).

72 Constitution of Turkey, Article 136.

73 See Pakistan Defence Forum, 'Basic Principles and Objectives: Should Pakistan copy the Turkish state system for religious affairs?', Presidency of Religious Affairs (27 September 2016), (last accessed 8 December 2020).

74 Nurhan Süral, 'Islamic Outfits in the Workplace in Turkey, A Muslim Majority Country', Comparative Labor Law and Policy Journal (2009), 30: 569, 575.

75 'Public peace, national solidarity and justice within the Republic of Turkey, being respectful of human rights, is linked to Atatürk nationalism, initially based on the fundamental principles of a democratic, secular and social state of law.'

76 'Everyone is equal before the law without discrimination because of language, race, colour, gender, political thought, philosophical belief, religion, sect and similar reasons.'

77 Constitution of Turkey, Article 136.

78 '2020 Report on International Religious Freedom: Turkey', US Department of State (12 May 2021), (last accessed 13 December 2021).

79 Süral, op. cit., at 584.

80 id.

81 ibid., at 587.

82 id.

83 ibid., at 588 (noting, however, that there is a general exception that prohibits discriminatory job advertisements).

84 id.

85 Sahin v. Turkey, App No. 44774/98, 2005 ECtHR.

86 Karaduman v. Turkey, App No. 16278/90 2003 ECtHR.

87 id.

88 Süral, op. cit., at 591.

89 Hossein Esmaeili, 'On a Slow Boat Towards the Rule Of Law: The Nature of Law in the Saudi Arabian Legal System', Arizona Journal of International and Comparative Law (2009), 26(1): 7-8.

90 F Gregory Gause II, 'Fresh Prince: The Schemes and Dreams of Saudi Arabia's Next King', 97 Foreign Aff. 75 (2018).

91 Esmaeili op. cit., at 7.

92 id.

93 id.

94 id.

95 See references to Saudi Arabia in 'International Religious Freedom Report for 2013', US Department ofState, Bureau of Democracy, Human Rights and Labor, 3, (last accessed 8 December 2020).

96 Esmaeili, op. cit., at 7.

97 Katherine Scully, 'Blocking exit, stopping voice: How exclusion from Labor Law protection puts domestic workers at risk in Saudi Arabia and around the world', Columbia Human Rights Law Review (2010), 41: 825, 850.

98 ibid., at 848 (quoting Charles P Trumbull, 'Islamic Arbitration: A New Path for Interpreting Islamic Legal Contracts', Vanderbilt Law Review (2006), 59: 609, 630).

99 Esmaeili, op. cit., at 5.

100 ibid., at 29.

101 id.

102 id.

103 id.

104 id.

105 'International Religious Freedom Report for 2020', US Department of State, Bureau of Democracy, Human Rights and Labor, 1, (last accessed 13 December 2021).

106 See, e.g., 'Saudi blogger receives first 50 lashes of sentence for “insulting Islam”', The Guardian (10 January 2015), (last accessed 8 December 2020).

107 Donna Abdulaziz and Raja Abdulrahim, 'Saudi Arabia Ends Male Guardian Requirement for Women Attending Hajj', The Wall Street Journal (16 July 2021), (last accessed 20 December 2021).

108 '“As If I Am Not Human”: Abuses against Asian Domestic Workers in Saudi Arabia', Human Rights Watch (July 2008), 20, (last accessed 8 December 2020).

109 Stancati, op. cit.

110 Margherita Stancati, 'Mohammed bin Salman's Next Saudi Challenge: Curtailing Ultraconservative Islam', The Wall Street Journal (10 January 2018), (last accessed 13 December 2021).

111 'International Religious Freedom Report 2013', op. cit., at 4.

112 'Saudi Arabia: Country Reports on Human Rights Practices', US Department of State, Bureau of Democracy, Human Rights and Labor (4 March 2002), (last accessed 8 December 2020).

113 id.; see also Scully, op. cit., at 859 and footnote 243.

114 Scully, op. cit., at 827.

115 Stancati, op. cit.

116 id.

117 id.

118 Press Release, US Embassy & Consulates in Russia, 'Religious Freedom Designations' (17 November 2021), (last accessed 13 December 2021).

119 Begag and Habibi, op. cit.

120 Human Rights Watch, op. cit., at 90 to 91.

121 id.

122 id., at 21, 91.

123 The court initially doubled the victim's sentence to six months' imprisonment and 200 lashes for reaching out to the media. However, following an international outcry, King Abdullah later pardoned the young woman. Nonetheless, the case still reflects some of the injustices that many women face in the Saudi Arabian legal system. See also Human Rights Watch, op. cit., at 21.

124 Katayoun Alidadi, 'Opening Doors to Muslim Minorities in the Workplace? From India's Employment Quota to EU and Belgian Anti-Discrimination Legislation', Pace International Law Review (2011), 23: 146, 172, 175.

125 ibid., at 150.

126 id.

127 id.

128 ibid., at 175.

129 Alidadi, op. cit., at 174 (internal citation and quotation marks omitted).

130 ibid., at 170.

131 Constitution of India, Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

132 ibid., at Article 15. This Article has been amended twice to allow for special measures to advance any social and educationally backward classes of citizens, Scheduled Castes or Scheduled Tribes. See also Alidadi, op. cit., at 176.

133 Alidadi, op. cit., at 176.

134 id.

135 ibid., at 187 to 188.

136 'Comparative study of anti-discrimination and equality laws of the US, Canada, South Africa and India', Publications Office of the European Union (February 2012), 46, (last accessed 8 December 2020).

137 id.

138 '“This Is It. I'm Going To Die”: India's Minorities Are Targeted In Lynchings', NPR (21 August 2019), (last accessed 20 December 2020).

139 id.

140 '“Shoot the Traitors” Discrimination Against Muslims Under India's New Citizenship Policy', Human Rights Watch (9 April 2020), (last accessed 20 December 2020).

141 Shoaib Daniyal, 'Protests, Bangladesh and North East: Why Modi hasn't implemented CAA two years after it was passed', (11 December 2021), (last accessed 13 December 2021).

142 id.

143 'India religious minorities face increased violence under Modi – report', Deutsche Welle, (last accessed 20 December 2020).

144 Balaji v. State of Mysore, AIR 1963 SC 649.

145 State of Kerala v. Thomas, AIR 1976 SC 490.

146 Nayantara N, 'How do private firms get away with religious discrimination? It's the laws', The News Minute (23 May 2015), (last accessed 20 December 2020).

147 id.

148 id.; see also Abhishek Sudhir, 'Religious apartheid: India has no law to stop private sector from discriminating on grounds of faith', (4 June 2015), (last accessed 20 December 2020).

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