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manifest one’s religion or belief in the workplace, if deemed necessary, must
always be specific and narrowly defined; they must furthermore be clearly
needed to pursue a legitimate purpose, as well as proportionate to the said
purpose. While these requirements apply broadly to both public and private
employment, one should bear in mind that religious institutions constitute a
special case. As their raison d’être and corporate identity are religiously
defined, employment policies of religious institutions may fall within the scope
of freedom of religion or belief, which also includes a corporate dimension.
69. Under freedom of religion or belief, States have a formal responsibility to
prevent and eliminate all forms of intolerance and discrimination based on
religion or belief, including in the workplace. Their responsibility goes far
beyond ensuring non-discrimination in employment within State institutions;
they must also combat discrimination within the larger society, including as
regards employment in the private sector. Other stakeholders — companies,
trade unions, religious communities, civil society organizations — are also
encouraged to use their potential to contribute to a climate of tolerance and to
an appreciation of the diversity of religion or belief in the workplace.
70. Combating discrimination requires a comprehensive approach of tackling
both direct and indirect forms of discrimination based on religion or belief.
Whereas direct discrimination can typically be identified on the surface,
indirect discrimination often remains hidden under “neutral” rules which, on
the surface, affect all staff members equally. It may be useful to mandate
specific monitoring bodies with the task of gathering relevant data in order to
detect indirect discrimination. Moreover, eliminating indirect discrimination
may require measures of “reasonable accommodation”. At the level of specific
institutions, a culture of trustful and respectful communication is needed in
order to identify the specific needs of persons belonging to religious or belief
minorities.
71. The enshrinement of the principle of reasonable accommodation in the
Convention on the Rights of Persons with Disabilities should serve as an entry
point for discussing the role of similar measures in other areas of combating
discrimination, including on the grounds of religion or belief. Policies of
eliminating discrimination cannot be fully effective unless they also
contemplate measures of reasonable accommodation.
72. Against a widespread misunderstanding, the purpose of reasonable
accommodation is not to “privilege” religious or belief-related minorities, at the
expense of the principle of equality. One should bear in mind that in the context
of human rights, equality must always be conceived of as a diversity-friendly
equality, which is the opposite of “sameness” or uniformity. From the
perspective of a diversity-friendly, complex and substantive equality, measures
of reasonable accommodation should be appreciated as instruments of
translating the principle of equality into different social contexts. In order to
find appropriate practical solutions in this area, public and private employers
require training and advice which should be provided by the State.
73. Against this background, the Special Rapporteur formulates the following
recommendations.
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