Challenged pragmatism
| Author | Lisbet Christoffersen,Niels Valdemar Vinding |
| DOI | 10.1177/1358229113492064 |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| Subject Matter | Articles |
Article
Challenged
pragmatism: Conflicts
of religion and law in the
Danish labour market
Lisbet Christoffersen
1
and Niels Valdemar Vinding
2
Abstract
Against thebackdrop of a well-regulated and pragmaticDanish labour market, thequestion
of reasonable accommodation is discussed on the basis of current legislation, recent legal
cases and substantial interview material drawn from the RELIGARE sociolegal research
done in Denmark.Employees of religious faithhave made religious claims and therebychal-
lenged a secularunderstanding of the Danishlabour market. This raisesthe question of the
extentto which the religion of the individualcan be accepted in the generalpublic sphere. At
the same time,religious ethos organisationshave argued for the protectionof their organi-
sationalidentity and sought to employ and dismisspersonnel according to the norms of the
religious ethos,raising the question of how far‘reasonable accommodation’extends. Both
the individualand the collectivecluster cases ultimatelyraise questions concerningwhere to
draw the line between accommodating religion and restricting freedom on the basis of
professionalism, job functions or other reasons. On the basis of empirical findings, this
article concludes that the pragmatic approach is supporting a renewed religious identity
of faith-basedorganisations, but also warns against hijacking rightsof individual employees.
Keywords
Danish labourmarket, discrimination, public sphere, reasonable accommodation, RELIGARE,
religion and secularism
1
Roskilde University, Denmark
2
University of Copenhagen, Denmark
Corresponding author:
Lisbet Christoffersen, Professor of Law, Religion and Society, Department of Society and
Globalisation, Roskilde University, Building 25.1, Universitetsvej 1, Roskilde DK-4000, Denmark.
Email: lic@ruc.dk
International Journalof
Discrimination and theLaw
13(2-3) 140–168
ªThe Author(s) 2013
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229113492064
jdi.sagepub.com
Introduction
Regulation of the Danish labour market: Pragmatic and secular
The Danish labour market is both in principle and in practice regulated by market
organisations through negotiations (Greve, 2013; Madsen, 2006). Legislation is limited
to rather few norms applicable to everyone in the labour market (Kristiansen, 2008b).
The number of legal cases aimed at solving labour market conflicts has also been limited
in practice – not because there were no conflicts, but because conflicts were solved
through non-legal means (Petersen, 1996). Most often regulation in the labour market
is thus less based on a principled approach and more based on a need to solve concrete
conflicts in real life (Dalberg-Larsen, 2001b).
Such a pragmatic approach to the general regulation of a central field of modern life
can also be seen elsewhere in Danish and Nordic law (Dalberg-Larsen, 2001a, 2002,
2012), implying a certain hesitation towards being too principled. International human
rights are quite often understood more as legal policy than as legal norms (Vedsted-
Hansen, 2002), and problematised also because the implementation of such general legal
standards may change the balances between legislative powers on one side and court-
rooms or interpretative bodies on the other (Bruun Nielsen, 2006), thus between profes-
sional jurists and democratically elected politicians (Hammerslev, 2010). On the labour
market, this approach has historically kept regulation in the hands of labour organisa-
tions such as unions and employer associations.
Throughout the 20th century, these organisations have increasingly understood the
labour market assecularised (Christoffersen,2012c). Solidarity and equalityin the Danish
model are often seenas reminiscences of common, religiously informedmentalities (Gun-
delach et al.,2008; Kaspersen, 2006),albeit in a very secularisedform, not to be recognised
as directlyLutheran any more (Østergaard,2005; Petersen et al., 2010).Consequently, reli-
gious normshave reduced impact on the regulation of the labourm arket. This can be seen,
for instance, in the organisation of the weekly and yearly work calendar. Working on
Saturdays and Sundays as well as on official holidays, however, still warrants greater
compensation according to most labour market agreements – this is precisely where nei-
ther the labour market nor the society as such is secular (Christoffersen, 2012a).
A general secularity of the labour marketthus remains the case, even though the last20
years have seen the Christian labour organisation grow considerably (Ugebrevet Mandag
Morgen, 2010).The home page
1
of the Christianlabour organisation does not explainwhy
it is called Christian or how its religious identity makes a difference in concrete conflicts,
proposed solutions or the general norms of the Danish labour market; on the contrary, this
so-called ‘yellow’ labour organisation markets itself as simply a cheaper offer for those
who want to associate themselves. Denmark does not have a pillar system and the old
labour market organisations in general perceive religious questions as private matters –
as a rule, religious matters were not dealt with as part of the employment relationship.
This general secularity of the labour marketcould also be regarded as having its norma-
tive basis in the Danish constitution. Religious discrimination has been prohibited since
1849,including in the publiclabour market (Olsen,2006). An important elementin the tran-
sition from state religion to freedom of religion is that religion should no longer have any
influence on the individual’s access to civil andpolitical rights and, equally, that religious
Christoffersen and Vinding 141
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