This article is written by Aditi Aggarwal, a student of Symbiosis Law School, Noida. The article gives a detailed analysis about the rights protecting the conscience and beliefs of an individual at the workplace and outside the framework of employment, broadly in states of the U.S along with India’s position.
Employees in the U.S. are starting to believe that they should be given unqualified legal rights to refuse work activities that violate their ethical, moral, religious, or personal beliefs. These beliefs can be given a combined term i.e. conscience. Employees are increasingly refusing to fill prescriptions for morning-after pills, serve gay customers, sing “Happy Birthday” to restaurant guests etc. because of either their religious beliefs or their asserted feelings about the “rightness” or “morality” of the intructions given to them.
Conscience in the general workplace
Though the importance of conscience in American culture has existed since 1776, the protection of private workplaces is a new and growing phenomenon. At present, federal and state protection of conscience regulations are mainly limited to the field of health care but some laws provide the right to conscience outside the framework of employment too.
There is a little doubt regarding the expansion of the concept in the whole world and a larger workplace. Such a development would likely create uncertainty for employers. This growing trend may cause conflicts between organisations and workers. This debate will continue until future legislation and court rulings make this issue clearer.
Conscience and religion
As per the Illinois Health Care Right of Conscience Act 2016, ‘conscience’ refers to a series of sincerely held moral beliefs that originate from belief in God and its relationship with God and that which from a place in the life of its possessor which is parallel to the place filled by God among its adherents to the religious faiths. The Supreme Court interprets religion broadly to include deeply held beliefs but those are not religious in any traditional sense of the term in the case laws discussed below.
United States v. Seeger (1965)
In this case, it was held that if a person’s belief has the same position as his belief in God, then he can have conscientious objector status based on that belief. It was also held that such objections should be based on a religious belief and not on any sociological, philosophical, or political view and that the term “Supreme Being” should be interpreted to cover all types of faith.
Welsh v. United States (1970)
This case was decided during the Vietnam War. The Supreme Court tried to define the meaning of religion based on the First Amendment to determine whether an individual could obtain a religious exemption from military service. In this case, the Court determined that traditional religious beliefs were not a necessary condition for claiming the status of conscientious objector.
Freedom of conscience in the international arena
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights was adopted by the United Nations (UN) General Assembly on December 10, 1948. Article 18 of the declaration states that everyone has the right to freedom of thought, conscience, and religion. Further, it states that the right also includes the freedom for a person to:
- Change his belief or religion
- Manifest his religion or belief in teaching, worship, observance, and practice
This freedom can be exercised either alone or in a community with others and in private or public.
The International Covenant on Civil and Political Rights
Article 18.1 of the International Covenant on Civil and Political Rights is the same as Article 18 of the Universal Declaration of Human Rights. It came into force in March 1976 as the Office of the High Commissioner for Human Rights, 1976.
American Convention on Human Rights
Article 12.1 and 12.2 of the American Convention on Human Rights 1978 recognizes the right to freedom of conscience and prohibits oppression of persons resulting from faith. Further, Articles 27.1 and 27.2 of the convention give the state the privilege of limiting some of the human and civil rights in cases of war or national emergency but freedom of conscience is ensured even in these extreme circumstances.
Conscience protection in the workplace
Primary federal law
The Civil Rights Act of 1964 prohibits discrimination based on race, religion, sex color, or national origin. Title VII of the revised Civil Rights Law protects employees and job applicants from employment discrimination. The federal agency responsible for implementing this title is the Equal Employment Opportunity Commission (EEOC).
What is Title VII
Title VII of the Act is the primary federal statute that covers most public and private employers with fifteen or more employees. The Act prohibits discrimination concerning job applicants and employees because of their religious beliefs and practices or because they do not have religious beliefs/practices in all aspects of employment.
The law is interpreted in such a way that it is required by employers to provide their employees with a “reasonable accommodation” for their sincere religious beliefs to remove the conflict arising between work and religion. The only limit is that the accommodation should not cause undue hardship.
When can an employer be sued for violating Title VII
Employees must prove the following points for suing an employer for religious discrimination:
- The employee had ‘bona fide’ religious beliefs that the license with an employment requirement.
- He had informed the employer or the employer already knew of his beliefs.
- He suffered an employment action because he failed to meet the conflicting requirements or that the companies’ requirements and employees’ religious beliefs and practices were not removed by the company.
An employer’s right to question
An employer has the right to question if an employee’s beliefs are religious or not. This situation can arise if an employee acts inconsistently with a supposed belief or non-religious reasons are found to be there for getting the accommodation.
What are religious beliefs and practices
It has been held by courts and other related agencies that the protected religious beliefs or practices under the Act not just include the traditionally acknowledged religions like Judaism, Christianity, Buddhism, and Islam but even the new or uncommon faiths, faiths having few adherents or which have beliefs that are considered illogical, extreme or unreasonable by the society can be considered as protected religious beliefs.
Ethical beliefs about what is right and what is wrong or morals that are nontheistic can be religious and if sincerely held with the strength of traditional religious views are protected under Title VII. But there has to be a religious component as mere strength of belief or sincerity is not sufficient. Beliefs are not “religious” if they are social, economic, or political, are lifestyle choices, or are social or parental obligations.
A practice can be said to be religious by determining the motivation behind it. For example- An employee may refrain from a certain activity due to purely religious reasons while another for purely secular reasons. The same applies to activities like not working on a particular day, wearing a certain kind of beard, cloth, or tattoo, or following a particular dietary schedule.
What accommodations are required
It has been interpreted by courts and EEOC that an employee has to notify the employer if he needs religious accommodation and in doing so, he must also be prepared for explaining his belief or practice to the employer along with responding to questions and cooperating in the search for a reasonable accommodation as per the circumstances. If complete accommodation would not cause excessive hardship, a partial accommodation- lowering but not eliminating the dispute is inadequate.
For example, if an employee is being allowed to be absent on Friday night alternatively for Sabbaths but allowing to be absent every Friday night would not cause undue hardship, then the former is unacceptable. If there is no alternative accommodation without this charge, the accommodation may cause some additional costs or inconvenience to the employees. For example, the courts have upheld religious accommodation where there is no viable alternative and the job transfer resulted in lower wages or reduced benefits for affected workers.
Some circumstantial “reasonable accommodations” are:
- Change in employees’ job assignments or schedules.
- Permitting lateral transfers or schedule swapping.
- Allowing use of vacation, sick, and “comp” days for covering absence due to Sabbath.
- Wavering of dress requirements.
- Wavering of workplace policies and procedures.
- Permitting prayer or any other religious expression in the workplace.
When does an accommodation create an undue hardship
Though Title VII does not expressly specify what “undue hardship” in religious accommodation means and when it can excuse an employer to implement it, the EEOC and the courts have done that. According to them, the suffering caused by a religious accommodation must be only more than insignificant or inconsequential before it is considered “undue” and hence not obligatory of the enterprise.
When determining whether a requested accommodation causes “undue hardship,” the employer might properly consider the impact on the business. The company may consider the following elements:
- Nature and size of the workplace.
- Nature of the employee’s duties following the requested accommodation.
- The needed costs and disruptions for making the accommodation given the employer’s size and operating costs.
- The number of employees who would require similar accommodation.
- The number of employees which would be affected by the accommodation.
One ambiguous thing is that there is no bright line between “hardship” and “undue hardship,” because “de minimis” (meaning pertaining to minimal things) is one such term that is not delineated in Title VII. The courts have however found that in an accommodation, “more than de minimis” hardship (thus excusing the company from implementing it) occur when others’ jobs, safety, or benefits are being infringed, the efficiency of the requesting employee’s or others’ jobs are affected, or it results in others picking up the accommodated employee’s share of potentially dangerous or unpleasant work.
Regarding any conflicts between the proposed religious facilities and the union’s qualification system or collective bargaining agreement, the law is relatively clear: “undue hardships” have been encountered repeatedly where the accommodation would deprive other employees of their work or shift preferences or other benefits guaranteed by collective agreement or bona fide seniority system.
Secondary federal laws
The Federal Abortion Non-Discrimination Act
The Abortion Non-Discrimination Act (ANDA) 2013 declares that no healthcare provider shall be forced to perform or assist in abortion by the government. ANDA codified the Weldon Amendment by making it permanent rather than an annual appropriations bill. It would also provide victims of discrimination under that policy, as well as the Church Amendment of 1973, a legal right to sue to safeguard their rights.
Church Amendment, 1973
The Church Amendment might be regarded as the first employment-related freedom of conscience or “refusal clause.” According to the Church amendment passed by Congress, public officials may not require individuals or organisations receiving public funds to perform abortion or sterilisation procedures, or to provide facilities or personnel for such procedures if such performance “would be contrary to the individual or entity’s religious beliefs or moral convictions.” The amendment was added to the Health Programs Extension Act, 1973 under Section 300a-7(b).
Weldon Amendment, 2005
Physicians and other healthcare professionals, hospitals, insurance plans, health maintenance organisations, provider-sponsored organisations, and other healthcare institutions, plans, or facilities are all covered under the Weldon Amendment. The amendment is a part of present HHS Appropriations bills and is prohibitive of federal agencies and programmes along with state and local governments who discriminate against healthcare providers that do not provide abortion coverage, service, or referrals.
If a law or regulation mandates any of this, the action would be taken as a discriminatory action and there might be a risk of losing the federal funds as provided under the LaborHHS-Education bill.
California challenged the Weldon Amendment
In State of California v. United States, 2008, California claimed that the Weldom amendment is unconstitutional as it interferes with California’s enforcement of a state law that provides for criminal and civil penalties against healthcare workers in case they do not perform or refer abortions. The California Federal Court judge rejected the challenge to the Weldon Amendment, so California will still be unable to fine and criminally prosecute health care workers and entities that refuse abortion.
The Protection of Conscience Project
The Protection of Conscience Project is a non-profit and non-denominational initiative whose main focus lies in the field of ‘health care’. According to the project, ‘health care must not be forced to do what they believe to be wrong or punished for refusing to do so.’
The functions of the project are as follows:
- Critiquing the policies of coercion.
- Advocating for the protection of legislation relating to conscience.
- Providing information, offering suggestions, encouraging co-operation, and facilitating communication to those who are working for conscience protection.
- Providing draftsmen of the legislature with the required information.
- Acting as a clearinghouse and directing legal assistance to those who are discriminated against for giving reasons of conscience along with other possible support.
- Promoting understanding and clarification of the issues involved for assisting public discussions.
Accreditation of Council for Graduate Medical Education (ACGME) standards
Accreditation of Council for Graduate Medical Education (ACGME) acquired the professional standards which required residency programs in obstetrics and gynecology to provide abortion training. These standards allowed an exemption for the programs or individuals having moral objections from participating in the abortion training.
The Coats Amendment (1996)
As a part of the Public Health Service Act, the Coats amendment was passed by Congress in 1996. The Coats Amendment was passed after the issuance of professional standards by ACGME and ensured that medical institutions that do not offer abortion training or give referrals to persons seeking abortion training at another institution continue to receive federal funds and legal status. Furthermore, discrimination against institutions and people who decline to offer the training is prohibited by the amendment. Under the amendment, individuals or institutions are not required to cite moral objections for their non-compliance.
The Religious Freedom Restoration Act (RFRA), 1993
Under RFRA 1993, The federal government and states were initially forbidden from severely burdening a person’s exercise of religion unless the burden was applied in support of compelling government interest and is the least restrictive method of advancing that interest but after the judgment given by SC in City of Boerne v. Flores (1997), the Congress amended the law in 2000 and limited the act’s applicability to the federal government. The US Supreme Court in the case of City of Boerne v. Flores held that RFRA 1993 exceeds Congress’ power and the act is constitutional in the case of the federal government only, not in the case of states.
Congress enacted the RFRA codifying a constitutional rule i.e, the balancing test that is used to evaluate whether generally applicable and religiously neutral laws that inadvertently impose a substantial burden on a person’s religious activities violate the First Amendment’s free exercise clause.
Affordable Care Act, 2010
The Affordable Care Act expands refusal clause protections. The expansion prohibits the health care plans under the new state-based health insurance exchanges from discriminating against health care providers and facilities if they are unwilling to provide, provide coverage of, pay for, or give referrals for abortions. In addition, President Obama issued an Executive Order reaffirming all existing federal refusal protections.
Conscience Rules, 2019
The U.S. Department of Health and Human Services (HHS) and the Office for Civil Rights (OCR) issued final Conscience Rules on May 2, 2019, improving the rights of hospitals and health care workers to refuse to participate in any patient-related activity due to moral or religious grounds.
This rule covers OCR’s power to investigate and enforce violations of 25 federal “protection of conscience” laws. Concerning the purchasing power of the US Constitution, this rule applies to state and local governments, as well as public and private health professionals and entities, if they receive federal funds such as Medicare or Medicaid. The rule applies to a variety of important health services, such as abortion, sterilization, assisted suicide, and advance directives, extended to gender reassignment and HIV treatment.
The final rule significantly expanded OCR’s power to enforce the Federal Law for the Protection of Conscience. The previous rules (2011) only covered 3 laws of conscience, while this final rule was expanded to 25. The new rule broadly defines the federal law of conscience. Covered entities and protected activities are equally broad, including activities that provide services, pay for services (private and employer insurance), consult, and even refer to other physicians.
Healthcare workers cannot be required to receive training for certain services to which they object. The rule applies to any employee of the covered entity, such as hospital receptionists and cleaners. Patients can also object to health services, including mental health services for children. Though the rule does not specify anything about vaccinating children, doctors, nurses, and patients can request a conscience exemption.
Protection at the state level
Almost all the states in the U.S. have enacted a conscience clause legislation in one form or another. Most of the states offer protection for religious discrimination (similar to Title VII) and procedure-specific protection in the areas of sterilization, artificial contraception, and abortion.
The Florida Civil Rights Act
The Florida Civil Rights Act of 1992 (FCRA) is our state law prohibiting discrimination in employment. Nothing much has been mentioned under the act relating to conscience.
The Illinois Health Care Right of Conscience Act (HCRCA)
This Act gives protection to health care workers from professional discipline and liability for refusing to provide care to patients due to a conscience-based or religious belief. This protection has been interpreted broadly over the years and provides no provision for the patients’ protection in Illinois.
When state legislators came to know that this lack of balance in the interests of patients and health care providers has harmed many patients and has put many others at risk, HCRCA was amended to adjust that balance. The amendment required health care providers to have procedures in place to guarantee that patients receive sufficient information about their illnesses and treatment options to make informed decisions about their care. The amendment also provided that without adopting and following such policies, protection cannot be claimed under the act if the denial of treatment leads to injury. Sponsors engaged with religious health care professionals during the legislation process and changed the text to accommodate their concerns.
Mississippi Code, 2004
Mississippi regulations protect health care providers from “civil, criminal, or administrative liability for refusing to participate in health care services that violate their conscience” and prohibit any discrimination in employment based on such conscience.
Overview of other states
Colorado, Maine, Georgia, South Dakota, Florida, Tennessee, and Arkansas are some other states which have broad refusal clauses for health care providers. If there is a refusal to include an “undue hardship” or other accommodation limits of any significance, these states go further than their counterparts in Title VII or analogous state provisions on religious practice accommodation.
Case laws relating to Title VII
Dewey v. Reynolds Metal Co. (1971)
Dewey, an employee of the Reynolds Metals Company, began working at the company’s factory in Grand Rapids, Michigan, in 1951. He worked there until September 1966, when he was discharged for his refusal to enforce mandatory overtime on Sundays or seeking qualified replacements to do so. When he was discharged, he claimed that, as a member of the Faith Reformed Church since 1961, his religious beliefs prevented him from working on Sundays and did not allow anyone to work for him.
Dewey filed suit in the US District Court for the Western District of Michigan, alleging that Reynolds religiously discriminated against him under Title VII. The court rejected Reynolds’ arguments to the contrary and ruled in the plaintiff’s favour. The court ruled that Reynolds discriminated against Dewey as his mandatory overtime requests forced Dewey to choose between his religion and his job.
Walden v. Centers for Disease Control and Prevention (2012)
In this case, the court addressed the claims of religious discrimination brought by an employee. Marica Weldon was a devout Christian because of which she refused to counsel EAP clients engaged in same-sex relationships. She believed that such kinds of relations are immoral. She also did not want to lie to the clients. Due to her refusal, she was encouraged to seek other jobs within the company. Ms. Walden sued the employers and made several claims including religious discrimination in violation of Title VII. The trial court gave judgment in the favour of the employer and the appellate court affirmed.
According to the Court of Appeal, it found that Ms. Walden had indicated her true religious beliefs, that she was unable to provide relationship counseling to same-sex couples, even though EAP counselors were required to advise all employees on all issues. However, the court also found that EAP provided her with reasonable accommodation and encouraged her to obtain other jobs within the company.
The Court observed that the employer was obligated only to offer reasonable accommodation i.e. the opportunity to seek an open counselor position and not to offer Ms. Walden’s preferred accommodation. Court also found that plaintiff Walden failed in her duty to attempt in good faith to accommodate her own needs by choosing not to apply for an open position.
Are there any conscience rights for pharmacists
On one hand, conscience is used to justify legislation that allows individual pharmacists to refuse to dispense drugs on moral grounds while on other hand, conscience is used to support the law, allowing individual consumers to compel pharmacies to fill any legally obtained prescription without delay or inconvenience.
This has been a controversial issue as to what extent pharmacists may be allowed to shape their judgments based on their religious and conscience beliefs. Their judgments might affect a considerable population of women as it might narrow the range of services they offer to their consumers.
Though the current trend tends to support the increased freedom of conscience for health care providers, some states view the situation differently.
American Pharmacists Association, 2008
Over time, Journalists have reported some cases in which individual pharmacists have refused to fill prescriptions for emergency contraception as such contraceptives can prevent the implantation of fertilized eggs, and people who believe that human life can be protected after conception find this to be morally offensive and support the right to refuse.
The American Pharmacists Association appears to support this position, stating that it recognizes individual pharmacists’ right to conscientious objection and supports the establishment of a system that ensures patients receive legally prescribed treatment without compromising the right of objection. of the pharmacist.
New Jersey prohibits pharmacists from refusing to dispense prescriptions solely on moral, religious, or ethical grounds under the Emergency Contraception for Sexual Assault Victims, 2007.
In California, pharmacists are required to fill prescriptions and can refuse to dispense prescriptions, including contraceptives, only if the employer approves the refusal and women can still get the prescription on time under the 2005 California Labor Code. In the case of North Coast Women’s Care Medical Care Group, Inc., et al. v. San Diego County Superior Court (2008), the California Supreme Court ruled that doctors cannot refuse non-emergency medical treatment to gays or lesbians for religious reasons.
Right to conscience outside the framework of employment
Outside the framework of employment, the right to conscience has been protected in two ways by the US Legislatures and courts. The two key areas are the First Amendment and conscientious objection to war.
First Amendment protection against coerced expression
According to the first amendment, no law shall be made by Congress:
- Which respects the establishment of religion
- Which is forbidding the free exercise of religion
- Which is curtailing the freedom of speech or the press
- Which is abridging the right of the people to assemble peacefully
- Prohibits petition to the government for the redress of grievances
The Supreme Court of the United States held that the First Amendment prevents the government from forcing people to express or promote opinions they disagree with.
West Virginia Board of Education v. Barnette (1943)
In 1942, the West Virginia Board of Education made it necessary for instructors and students to salute the flag as part of their school activities. When the children of a Jehovah’s Witness household refused to do the salute, they were sent home from school and they were also threatened with reform schools which were used for children who were criminally active and their parents were also persecuted.
The question, in this case, was whether the mandatory flag salute in public schools is a violation of the First Amendment. The United States District Court ruled that forcing children studying in public school to salute the flag is unconstitutional. In the 6-to-3 decision of the Court, Robert Houghwout Jackson gave an opinion that the First Amendment cannot compel unanimity of view on any subject and that national symbols such as the flag should not be given special consideration.
Wooley v. Maynard (1977)
All noncommercial cars in New Hampshire were required by law to display license plates with the state slogan “Live Free or Die.” The slogan offended George Maynard, a Jehovah’s Witness, who removed the words “or Die” from his plate. Maynard was found guilty of breaking state law and was fined as well as sentenced to prison.
The question, in this case, was whether the New Hampshire law interferes unconstitutionally with the freedom of speech guaranteed under the First Amendment. The Supreme Court ruled 6 to 3 that New Hampshire could not compel individuals to display the state motto on their license plates as it was unconstitutional. The Court observed that the state wanted the individuals to use their vehicles as a ‘mobile billboard’ to display the state’s ideology and held that the State’s interests could not outweigh the principles of free speech given under the First Amendment.
Pacific Gas & Electric Company v. Public Utilities Commission of California (1986)
In its monthly billing envelope, the Petitioner included a newsletter. The company’s political opinions were reflected in the newsletter, which also included public interest articles and energy-saving advice. In 1980, a public interest organisation called Toward Utility Rate Normalization (TURN) requested the Respondent to either prohibit the Petitioner from spreading the newsletter or allow the company also to express its views in that space.
The question, in this case, was whether the Respondent can force the Petitioner, a privately held firm, to provide third-party access to its billing envelopes. The Petitioner was allowed to communicate its own political opinions through its envelopes, according to the Supreme Court as it was protected by its First Amendment rights. The Court went on to say that forcing someone to give access to their property restricts that person’s ability to express himself and requires the speaker to change their message to satisfy the other party.
Conscientious objection to war
The American society exempts those from military service who conscientiously object. Since the Civil War, conscientious objectors have been included in every federal statute permitting obligatory military service in the United States. According to the statute, religious faith is defined as a belief in connection to a supreme being and which does not contain political, social, or philosophical ideas or a purely personal code.
Conflicting beliefs and workplace demands constitute religious discrimination
Faith-based “conscience opposition” in the workplace is becoming more and more common. Though it is often confusing and seemingly difficult at first, if the employer understands applicable laws and develops and implements a thoughtful policy and action plan, such situations can usually be resolved without discrimination or litigation.
How can employers reduce the risk of religious discrimination claims
- By expressly stating in the personnel policies and employee handbooks the fact that religious discrimination or harassment is prohibited and that the employees’ religious beliefs/ practices will be reasonably accommodated provided such accommodations would not cause undue hardship.
- By developing human resources protocols:
- to respond to requests for “religious” accommodations.
- to address conscience-based refusals to work or obeying supervisor’s instructions.
- for enabling immediate and supportive interactions with an employee asking for accommodation to understand the reasons for their requests and to explore possible accommodations if reasons are premised on sincerely held religious beliefs.
- to prompt investigation.
- for Resolution of claims of “religious harassment”.
- By training supervisors and managers about ‘protected’ religious activities in the workplace and the company’s obligation for providing accommodation (including training about the breadth of “religion” under the law)
- By training staff about:
- What are or are not protected religious beliefs and to avoid assumptions or any kind of stereotypes.
- How to respond to employees and customer biases when it comes to religion.
- How to respond and recognize religious accommodation requests of employees or their refusals to work/abide by company policies.
One more thing that should be kept in mind is that if the organisation employing a person is not a religious institution (which comes under the limited exception provided by Title VII), “religion” should not be a factor in decisions like hiring, discipline/discharge, compensation/benefits, employee work-life, etc.
Employers facing “conscientious objection” need a plan
Though the theories of Title VII and EEOC along with judges’ opinions are informative, they do not always provide answers in a crisis.
If an employee refuses to perform tasks or assignments, refuses to comply with company policies or procedures, or refuses to obey the supervisor’s request, with comments such as “This is against my religious beliefs” or “I don’t believe in this”, the plan could be as follows:
Gather information from the employee
- Ask about the reasons for the refusal.
- If assertedly faith-based, ask what is in their beliefs that won’t allow them to do that particular task/job.
- Ask what the employee thinks about alternatives to the task that he is refusing and whether he would be willing to perform the task differently.
- Ask what the employee wants the company to do.
Assess the stated reasons for his refusal
- If the reason appears to be faith-based, then try to do a functional and not content-based analysis. For example- the company is not evaluating the “authenticity” of the beliefs, but instead assessing whether they are equivalent to the functions of religious beliefs/ prayer/ rituals in “traditional” faiths in everyday life.
- Then analyze whether it appears that the beliefs are sincerely held by determining whether the beliefs are consistent with the employee’s prior acts and statements.
- Determine if there is any reason to believe that employees’ actions are based on secular motives of “working in the system”, such as evidence that they try to avoid low-paid or unpleasant tasks, work certain days/shifts, work (or avoid) certain supervisors and so on.
- Finally, weigh the consequences of rejecting employees’ claims that their actions are based on beliefs. It is usually wise to admit that beliefs are “religious” and “sincere” and proceed with the next step of the plan.
Assess possible accommodations if a refusal is based on religious beliefs
- If a refusal is based on “religious” beliefs and those beliefs are protected by Title VII, determine whether it would be possible to assign the task to a different worker or modify the task in any way but without any extreme disruption or expense.
- Assess whether it is possible to abandon compliance with company policies without causing significant disruption, cost, or security concerns.
- If several adjustments seem feasible, assess which one can be implemented quickly, with the least disruption/cost to the business, but will eliminate the conflict between work and religion.
Decide what consequences you want to be there if an employee refuses for compliance
Determine in advance if the employee continues to refuse, will he be subject to disciplinary action or dismissal. If he would be, determine whether it is persuasive and documented evidence of:
- The importance of refusal for violation of policies or tasks/instructions.
- A warning is given to an employee of the consequences in case of continued refusal.
- Disciplinary action or any dismissal from the company of employees for non-religious breach of policy or obedience to supervisor.
- Employers and workers rejecting the “religious” basis for interactive communication with possible adaptations.
- Outline of the employer concluding that the employee’s actions would not (or could not) be accommodated.
Refusal to accept so-called “religious” beliefs may lead to EEO investigations or litigation, so it is very important to properly record the incident when it occurs, to provide employer evidence for subsequent submission to the EEOC or the court.
What is India’s position regarding freedom of conscience
Article 25 of the Indian constitution
Article 25(1) of the Indian Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion subject to public order, morality, and health. But there has been no such application of this law (the conscience part) in the workplace or even outside its framework.
Supreme Court’s take on freedom of conscience
The Supreme Court recognizes freedom of conscience and believes that “no one has the right to dictate to others the religion in which they believe; what philosophy does he have, what is his policy, what views he will accept, etc.” Any compromise on these principles is an attack on the rule of law.
But India saw an overlap of freedom to harbour and express beliefs and freedom of religion in the Sabarimala case. In this case, the Apex Court juxtaposed religious practices with equality before the law. In doing so, it ignored the freedom of conscience of devotees who claim to have practiced their beliefs for hundreds of years for moral reasons.
Need for recognition of the Right to Conscience at workplace
Just in the U.S, creating laws on the matter might be problematic and might raise controversies. It might leave people and lawmakers in dilemma and it might be difficult for the Supreme Court to balance the interests of both parties.
But the beliefs and conscience need to be recognized and put in a legal framework, especially in areas of employment. A country like India which is so diverse in religion should have some refusal clauses, especially for healthcare providers and pharmacists. Whether there is a need for such laws could be more clearly identified by talking directly to the stakeholders of this freedom i.e. the citizens of India.
Historically, personal conscience has always been the cornerstone of American society. Americans respect the conscience of anti-war conscripts, anti-abortion doctors, informants who oppose higher-level misconduct, and citizens who oppose government dogma, but the right of consciousness has a chilling effect on legislators who want to address the abortion barriers.
Finding an intermediate approach in any country, be it India or the U.S. might be difficult. The question of “Whether these rights might be expanded to every other occupation” does not have any certain answer as the whole concept is very contentious.
When it comes to India, until Constitutional precedents on freedom of conscience develop, courts must adopt a “middle ground” when dealing with ideological issues, which will only add more vitality to the vital nature of our Constitution.
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