Religious discrimination in the workplace: evolution of jurisprudence

Was the dismissal of an employee who turned down a job on religious grounds unfair? To this question concerning the complex and even thorny issue of the expression of beliefs in a company, which concerns the fundamental rights and freedoms of the worker, the Court of Cassation responded in the negative a few weeks ago, altering its jurisprudence.

→ READ. Employees concerned about religion at work

The case dates back to 2012 and concerns a team leader at a cleaning company, whose employment contract had just been taken over by a new company. The employee had declined a first geographic transfer. So he turned down another mission, this time to a cemetery, first showing a schedule mismatch with his other professional restrictions. Once his schedule was changed, he said his Hindu religion — cremation is central to funeral rites there — forbade him from working in such a place.

Dismissal “for a real and serious cause”

His employer had seen bad faith in this argument raised later. The team leader had been summoned for an interview ahead of a possible sanction, which had taken the form of a disciplinary transfer. Refusing to step into a new role, he was formally notified to do so and then fired in January 2013, “for real and serious cause”.

Contesting the breach of his contract, the interested party won his case at the industrial court and then, in 2019, at the Paris Court of Appeal, which ruled “discriminatory” the sanctions taken against him.

The Court of Cassation ruled otherwise in a judgment handed down on 19 January. For the highest jurisdiction of the judiciary, “Restrictions on religious freedom must be justified by the nature of the task to be performed, meet an essential and determining professional requirement, and be proportionate to the intended purpose.” And those conditions were met in this case, the Court ruled.

mobility clause

The criterion of “professional and decisive requirement” provided for by European and French legislation is satisfied here, because the assignment of the team leader was proposed “under a mobility clause legitimately implemented by the employer”. Furthermore, the Court’s Social Chamber argues, the transfer measure was “proportionate to the objective pursued” as long as she “allowed the maintenance of the employment relationship by transferring the employee to another cleaning site”. There was, therefore, no “unjustified direct discrimination because of the employee’s religious beliefs”.

How to decipher this decision? The Letter from the Social Chamber of the Court of Cassation qualifies him as “nuance”. the patio “marks an evolution in relation to its jurisprudence”, comments his advisor François Pion on the podcast “La Sociale Le Mag'”. until now she had “always said that the employer was not obliged to substantially modify the content of the work entrusted to an employee (…) adapt it to the expression of their religious convictions”., says another adviser, Laurence Pécaut-Rivolier. This was the approach taken in a landmark 1998 trial of a Muslim butcher from Mayotte who refused to handle pork, unclean in his religion: his professional obligations were imposed on him.

“Annoyance for rigorists”

“What is new is the fact that the Court takes into account elements other than the employment contract when deciding. And, in particular, the issue of discrimination, analysis with The cross Françoise Curtit, a CNRS research engineer in religious law, who sees this as a decision in line with European jurisprudence.

Hence a paradox, at least in appearance: if the judgment of January 19 found the cleaning worker wrong, based on this new jurisprudence, “decisions, tomorrow, may be favorable to employees” raising the foundation of religious discrimination.

reasonable approach

But “for strict believers” who would like to come into conflict with these matters, “This decision is quite disturbing as it confirms a reasonable approach”esteems the director of the Observatory of Religious Fact in company, Lionel Honoré. “It is not out of religious conviction, it is for personal convenience that the worker in question refused to perform his duties, which is in itself punishable”, argues this author of reports on religion at work for the Institut Montaigne.

ONE “enlightenment” welcome in order to resolve the most contentious cases. It is understood, it is emphasized, that “in the countryside, 90% of the problems can be solved by eliminating the religious question and questioning the good functioning of the company”.

Not just Islam

In fact, the academic notes that the case decided by the Court of Cassation did not concern the Muslim sphere. According to him, “This illustrates the fact that even though the cases identified largely concern Islam, the problem is not intrinsically Islamic: it is linked to a rigorous approach to religion, whatever it may be”.

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