In March, the European Court of Justice (ECJ) generated controversy (and confusion) when it ruled that a workplace ban on wearing the Islamic headscarf did not necessarily constitute direct discrimination. Employers could not single out Muslim employees, the ECJ found, but they could enforce general policies restricting religious dress so long as they applied equally to all.
This issue has played out differently in the US In a 2015 decision, for example, the US Supreme Court found that the retail clothing company, Abercrombie & Fitch, had violated Title VII of the Civil Rights Act of 1964 by refusing to hire a female applicant who wore a headscarf. The store’s managers were concerned about having to accommodate her under a company policy that prohibited all employees from wearing “caps” in the workplace. But, the Court explained, it was not enough for all workers to be treated in the same way, for Title VII did not demand “mere neutrality.” Instead, it promised religion “favored treatment” by prohibiting employers from refusing to hire an individual “because of such individual’s religious observance and practice.’” By taking this applicant’s prospective need for a religious accommodation into account, Abercrombie had run afoul of US law.
In recent years, the private workplace has emerged as a critical site for working out issues of religious difference in pluralistic societies. Workplace discrimination complaints have spiked over the last decade, thanks to a range of factors, including globalization, changes to immigration laws, post-9/11 Islamophobia, public Christian evangelism, Baby Boomer “spiritual seeking,” and the “new” politics of religious freedom. Employees have sought accommodations for special clothing and attire, food and dietary practices, prayer and festival observance, decorations in personal workspaces, and refusing to fulfill certain tasks, like selling contraception or alcohol. As the two cases cited above make clear, different countries have regulated these issues in different ways, reflecting different underlying assumptions about how best to manage religious differences in ostensibly secular societies.
Title VII of the 1964 Civil Rights Act, as amended in 1972, requires US employers to provide “reasonable accommodations” for the religious beliefs and practices of their employees unless doing so would create “undue hardship on the conduct of the employer’s business.” US law thus promises relatively robust protection for the religious rights of American workers. It also places workplace managers in a surprisingly precarious position, forcing them to make a number of delicate but fraught determinations. How far must they go in accommodating their employees? What constitutes “undue” hardship? And how should they assess which employee claims are valid? How are they to know, for example, whether a male employee actually “needs” to grow a beard, and whether he does so for “religious” reasons or others? According to settled case law, beliefs and practices qualifying for accommodation need not be logical, comprehensible, or widely shared. They must only be “sincerely held.” Yet how ought an employer determine the “sincerity” of her employees?
In part for these reasons, religion has typically appeared in scholarship on workplace diversity as a problem, requiring careful management and delicate negotiation. The literature makes clear that employers should tread cautiously in deciding what counts as a legitimate claim, how to go about accommodating it, and how to handle intra-workplace conflicts when they arise. Given all the potential pitfalls, managers might be forgiven for thinking of religion primarily as a disruption, as an obstacle to the proper functioning of business, and thus best left at home.
Yet there has been a notable shift in recent years. Business scholarship has grown more attentive to religion, urging corporate leaders to “take religion more seriously” and make space for its practice. Employers have made more proactive efforts to create inclusive environments in which workers might more readily reconcile their commitments to work and faith. Businesses have hired workplace chaplains, created designated interfaith prayer spaces, introduced more flexible work schedules, and adopted policies encouraging co-workers to step in when an employee is unable to carry out their responsibilities for religious reasons. A recent article in Bloomberg News, for example, specifically noted the rise of “Muslim-friendly workplaces in corporate America.” More and more, it seems, businesses have been treating religious diversity not as a problem to be managed but as a resource to be capitalized.
There are a variety of factors accounting for these shifts. Most notably, they stem from what Winnifred Fallers Sullivan has described as the “naturalization” of religion, or the shift from legal separationist paradigms to more formal acknowledgment of spirituality as a universally shared feature of human life. They also reflect what Mariana Valverde has described as a shift in contemporary discourse about diversity, from a “rainbow nation” notion grounded in a commitment to social justice to a “neoliberal” or “corporate” model, which interprets diversity as a resource to be capitalized for maximum efficiency and gain in a competitive marketplace. According to this conception, accommodating religious differences becomes less a problem or challenge and more a sign of effective management, even a means for promoting a more productive labor force. Accommodating religious diversity is understood not just as a way of meeting a legal mandate, but of bolstering the bottom line. Accommodations function as a sign of the corporation’s own good faith, a marker of its status as a conscientious employer. They become part of what it means to run a good business.
These trends are mostly worth celebrating, as they manifest a distinctly American commitment to pluralism and religious liberty. Yet it is also worth taking seriously their unintended consequences, to ask, for example, what it means when employers are understood as having an important role to play in bolstering and nurturing the religious commitments of their employees, or to consider how proactive policies might encourage workers to bring their religion to work in ways they otherwise might not have done. In other words, we ought to interrogate the possibility that “taking religion seriously” could give rise to the very conflicts that accommodations are meant to resolve.
It is unclear how these issues will play out, but they are worth our close attention, especially as American workplaces continue to grow more “diverse,” and as more and more sectors of society are encouraged to operate like “businesses.” What, precisely, will we ask of our nation’s leaders, and what will this mean for the accommodation—and production—of religious differences?
Featured image credit: Image by Jerry Seon, CC0 Public domain Pixabay