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religious or belief minorities who may be confronted with the dilemma of either
living in accordance with their convictions or risking dismissal or other sanctions.
47. Indirect discrimination at the workplace can occur both in public institutions
and in the private sector. When establishing rules or practices with indirectly
discriminatory implications, public or private employers in some cases are
cognizant of what they do and use such mechanisms on purpose. However, it seems
plausible to assume that in many cases they are not fully aware of the possibly
discriminatory effects that prima facie neutral rules can have on the situation of
religious or belief minorities within their staff.
48. Apart from difficulties in detecting indirect discrimination or other concea led
forms of religious intolerance, finding an appropriate response is usually more
complicated than in cases of straightforward intolerance and direct discrimination.
Obviously, it requires a culture of open and trustful communication between
employers, managers and staff, always including religious or belief minorities, who
should feel encouraged to voice their specific concerns and needs. In some
situations, indirect discrimination can only be rectified by modifying general rules
or by accommodating specific “exceptions” for certain individuals. Many employers
are reluctant to embark on such a course out of a fear that this could open the
floodgates to all sorts of presumably “unreasonable” demands. Some employers may
also fear that by accommodating specific needs of religious minorities, they could in
the end undermine important policy considerations, such as corporate identity,
neutrality, customer-friendliness and the rights of other employees. Demands to
accommodate specific needs of religious or belief minorities seem to have triggered
resistance in the wider society, because they are sometimes misperceived as
“privileging” minorities at the expense of the principle of equality. For this reason,
even people generally sympathetic with broader human rights and non-discrimination
agendas may react in a somewhat ambivalent manner towards proposals of special
accommodation for religious or belief minorities in the workplace. In order to
counter such fears, those proposing specific measures of accommodation u sually
make clear that these measures should remain within a “reasonable” framework.
This leads to the issue of “reasonable accommodation”.
D.
The role of reasonable accommodation
1.
The meaning of reasonable accommodation
49. “Reasonable accommodation” has become a recognized term in the
international human rights debate, and its relevance in a comprehensive
non-discrimination strategy has been formally enshrined in the Convention on the
Rights of Persons with Disabilities, 2006 (General Assembly resolution 61/106). 19
Article 2 of the Convention defines: “Reasonable accommodation means necessary
and appropriate modification and adjustments not imposing a disproportionate or
undue burden, where needed in a particular case, to ensure to persons with
disabilities the enjoyment and exercise on an equal basis with others of all human
rights and fundamental freedoms”. Article 5, paragraph 3, of the Convention
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19
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The term “reasonable accommodation” has been used by the Committee on Economic, Social
and Cultural Rights in its general comment No. 5 (E/1995/22, annex IV, para. 15 ). See also the
Committee’s general comment No. 20 (E/C.12/GC/20, para. 28).
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