Religion and equality in multicultural workplaces: Human rights and anti-discrimination discourses in EU law

Abstract

How does, or should, European Union labour law structure the enquiry into the nature of equality rights in the workplace — in particular, into the role of religion and the conceptualisation of race — given the relevance of two potentially competing discourses, on human rights and anti-discrimination? The focus of this chapter will be on the interaction within EU law between two discourses or normative orders which speak to the recognition of identity-based rights in the workplace: human rights norms, which seek to guarantee ‘freedoms’ such as freedom of religion, and anti-discrimination norms which aim to achieve equality. The Court of Justice of the European Union serves as a location for both forms of action or types of analysis, though it is arguably more at ease with the latter. Indeed the Court of Justice is particularly attuned to anti-discrimination discourses which, in the EU context, take their inspiration not only from the idea of equality as a ‘universal’ right, but also from the instrumental concern to ensure market integration and economic activity unimpeded by discrimination. In contrast, the discourse of human rights within civil society, concerned to ensure freedom from state interference (whilst also including the state’s obligation to ensure a legal framework within which private actors do not violate the human rights of individuals or groups), is one in which the Court of Justice has traditionally deferred to the jurisprudence of a more specialised human rights court, the European Court of Human Rights. The question for this chapter is to what extent these two discourses overlap or influence each other within EU law, especially in relation to a right such as religious discrimination, which resonates sharply within both discourses. This enquiry will take place within the institutional framework of the EU anti-discrimination law regime, the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights. In its examination of ‘religion’ within EU labour law, the chapter will focus on the clash between religious freedom and other human rights; and between the prohibition of discrimination on grounds of religion and other equality rights: to what extent does it make a difference to the resolution of the issue if it is decided on the terrain of human rights or that of equality law? The Eweida judgment of the European Court of Human Rights will be analysed as a key illustration of that tension. Second, the chapter will interrogate understandings of ‘race’ within the EU legal order, before moving to explore the impact and interpretation of the EU race directive.