The more employee-friendly the California courts get, the more inevitable the comparisons are between California and European workplace laws. But, are we in the U.S. really that different to begin with? A recent decision from the European Court of Human Rights suggests not.
On January 15, 2013, the European Court of Human Rights issued a decision on religious accommodation which was remarkably similar to claims decided under the Title VII and California’s Fair Employment and Housing Act (“FEHA”), as well as recent California legislation on religious dress and grooming. (Our recent blog post on the Workplace Religious Freedom Act of 2012 can be found here.)
The decision first analyzed the claims of two employees—a British Airways flight attendant and a geriatric nurse—who were precluded from wearing crosses around their necks at work. In the case of the flight attendant, the airline’s uniform policy initially provided that items worn for religious reasons must be covered by the employee’s uniform. In September 2006, the flight attendant was sent home without pay for openly wearing a cross until she agreed to comply with the uniform code. In October 2006, British Airways offered her administrative work without the obligation to wear a uniform or have customer contact, which she refused. The employee returned to work in February 2007 when British Airways changed its policy to permit the display of religious and charity symbols. The Court found that the flight attendant’s right to manifest her religious belief outweighed British Airways’ wish to project a certain corporate image, because other British Airways employees had previously been authorized to wear religious clothing such as turbans and hijabs without any negative impact on the company’s brand. That is precisely the same ruling that courts in the U.S. have consistently reached.
On the other hand, the Court ruled that the hospital had a more compelling reason to preclude the nurse from wearing a cross, as “the protection of health and safety on a hospital ward was inherently of much greater importance.” Again, courts in the U.S. have consistently found that where issues of health and safety are involved, an employer has much more leeway in imposing dress and grooming rules.
Finally, the Court found that employers were justified in terminating a marriage registrar and a sex therapist, who had refused to deal with gay individuals based on religious beliefs. Like courts in the U.S., the European court found that an employer’s enforcement of its non-discrimination policies outweighed an employee’s claim to religious freedom.
In sum, when it comes to issues surrounding religious accommodation and dress and grooming policies, European judicial bodies are facing the same thorny issues as California courts, often with very similar outcomes.