Accommodating Religious Beliefs: Harm, clothing or symbols, and refusals to serve others

Abstract

Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a 'general right to conscientious objection', which would exempt religious individuals from all anti-discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non-accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case-by-case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom. © 2014 The Modern Law Review Limited.