Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law?
| Date | 01 June 2010 |
| Author | Emmanuelle Bribosia,Isabelle Rorive,Julie Ringelheim |
| DOI | 10.1177/1023263X1001700203 |
| Published date | 01 June 2010 |
| Subject Matter | Article |
17 MJ 2 (2010) 137
REASONABLE ACCOMMODATION
FOR RELIGIOUS MINORITIES:
A PROMISING CONCEPT FOR EUROPEAN
ANTIDISCRIMINATION LAW?*
E B**, J R***
and I R****
ABSTRAC T
In both the United States and C anada, the concept of reasonabl e accommodation rst
emerged in equality law as a means of handling religious diversity. It was then applied to other
grounds of discrimination, most notably disability. In the European Union, the evolution of
antidiscrimination l aw is following a dierent path: a duty of reas onable accommodation
was for the rst time establis hed by the 2000 Employment Equality Direct ive (or Directive
2000/78/EC) but only with respe ct to disability. Nonetheless, th e question whether a right
to reasonable accommodation can be derived from the prohibition of discrimination based
on religion laid down by the same Directive, or, alternatively, whether such right should be
recognized in future European leg islation is becoming increasingly salient.
Keywords: reasonable accommodation; antidiscrim ination; religion; disabi lity;
Employment Equality Direc tive
* is article is base d on a revised version of a paper published by the three authors in French: ‘Aménager
la di versité: le droit de l’éga lité face à la pluralit é religieu se’, in the Revu e trimes trielle des droits de
l’homme, 20 09, p. 319–373. It is part of a research ca rried out wit hin the rese arch program (Ac tion de
Recherche Concertée) ‘Outsiders in Europe: e Foreigner and t he ‘Other’ in the Process of Changing
Rules and Identities’, coordinate d by Prof. And rea Rea and nanced by the Communauté fran çaise of
Belgium. e tr anslation of this pap er was carried out by Math ias Möschel. e authors are g rateful to
the anonymous re viewer for valuable comment s on a previous dra of th is article.
** Emmanuelle Br ibosia is professor at t he Université Libre de Bru xelles (ULB) and Direc tor of the Legal
Department of t he Institute for Europe an Studies.
*** Julie Ringelhei m is resea rcher at the Belgia n Nation al Fu nd for Scienti c Re searcher (FNRS) and
lecturer at Lou vain University (UCL).
**** Isabe lle Rorive is professor at the Law School of the Université Libre de Bru xelles (ULB) and Senior
Fellow at the Perelma n Centre for Legal Phil osophy.
Emmanuelle Br ibosia, Julie Rin gelheim and Isabel le Rorive
138 17 MJ 2 (2010)
When the Employment Equalit y Directive1 was passed in 2000, t he concept of a right to
reasonable accommodation it introduces i n favour of disabled workers was a novelty for
European Union law. By contrast, in t he United States and in Canada, this notion had
been par t of antidiscrim ination law for years and was by no means limited to disabled
people but could also be claimed on rel igious grounds.
Reasonable accommodation is based on a fundamenta l observation: some individuals,
because of an inherent character istic they have, such as d isability or religion, are
prevented from performing a task or from accessing certain spaces in conventional ways.
Since society is organiz ed primarily on the basis of people who do not share those traits,
the former may be unable to access employment, serv ices, or other activities. Hence, the
interaction between an i ndividual’s characteristics a nd the physical, social or normative
environment u ltimately deprives him/her of the advantages of an employment or of a
service which, in principle, should be open to everyone.2 At ti mes, an accommodat ion
of that environment, namely its modic ation or adjustment, allows people havi ng
that characteristic to avoid such disadvantage when compared to ot her indiv iduals.
Accordingly, the laws of some countries hold t hat in such situations the principle of
equality and non-discrimination imposes a duty of ‘reasonable acc ommodation’, t hat
is, the obligation to take all appropriate measu res so as to guarantee cer tain categories
of people protection against discrimi nation by granting access to employment or other
activities. However, this duty has a li mit: the accommodation must be ‘reasonable’. It
cannot impose a d isproportionate burden on the person having to b ear it, which can be
an employer, any other private economical actor or a public authority.3
Academics are split over the question whether to qualify the refusal to provide
reasonable accommodat ion as direct discrimi nation, indirect d iscrimination or a s
a t hird, sui generis type of discri mination.4 In any e vent, from a conceptual point of
view, the duty of reasonable accommodation is closely related to the concept of indirect
discrimi nation. It is indeed based on the idea of substantive equalit y by recognizing th at
a facially neutral provision, namely one that does not forma lly distinguish on the basis
of a prohibited criterion, may be discrimi natory in its eects when it discrimi nates de
facto aga inst a protected group of people. is corresponds precisely to t he concept of
1 Council Directive 2000/78/E C of 27 November 2 000 Establishing a General Framework for Equal
Treatment in Employment and O ccupation, [2000] OJ L 303/16.
2 Waddington, ‘Reasonable Accommodat ion’, in D. Schiek et al (eds), Cases, Mater ials and Text on
National, Sup ranational and Intern ational Non-Discr imination Law, Ius Commune C asebooks for the
Common Law of Europe (Ha rt Publishing , Oxford 2007), p. 631 at 629–756.
3 See the denit ion oered by B osset, ‘ Les fondement s juridiqu es et l’évolution de l’obligation
d’accommodement raisonna ble’, in M. Jeze quiel, Le s accommo dements raisonnable: quoi, c omment,
jusqu'où? Des outils p our tous, (ed. Yvon Blais, Cowan sville 2007), p. 10 at 3–28.
4 On this controversy, s ee McCrudden , ‘eorisi ng European Law’, in C. C ostello a nd E. Barry (eds),
Equality in D iversity – e New E quality Directives (Irish Centre for Europea n Law, Dublin 2003),
p. 27 – 28 at 1–38;Waddington, ‘Reason able Accommodation’, p. 740–754; on the relat ionship between
the concepts of reas onable accommodation and d iscrimination, s ee also Jolls, ‘Antidiscr imination and
Accommodation’, 115 Harvard Law Rev iew (2001), p. 642–699.
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