Discussing cultural diversity and legal certainty in the Enterprise

frenchrevolution3 Is it licit for one to be dressed in such a way as to import cultural or religious connotations into the workplace? Should breaks be granted for prayer-time, or leave allowed for denominational feast days? May a female employee decline to interact with her male colleagues? Is the observance of various hygiene or food prescriptions to be allowed for? Today, every human resources manager has already had to face issues such as these, or will soon have to. Some may have nursed the thought that, in a secular country, religious issues would become less impassioned, and even be sidelined by a naïve form of Marxism. But, far from that, it turns out that increasing globalization has encouraged cultural diversity. Finally, the complexity of the human ever eludes even the most sophisticated of management techniques. Homo economicus is already a fossil; the classic anthropology of many economists has been shaken to the roots. Today people at work demand respect and guarantee for other aspects of their personality.
A growing number of companies are having to face such demands. Are they obliged to take into account the religious and cultural convictions of their staff ? And if such is the case; how is this to be done, and to what extent?

To these new questions, French law often merely brings impressionistic and partial answers; for life usually precedes the law. The subject has been the frequent object of a miscellany of texts of unequal value. There also exists extensive case law, both French and European, which is more likely to reach a settlement in specific cases than to lay down general principles. Finally there are practices in domains that the law has not yet taken on. How is it then possible to see more clearly into the issue? How are we to ensure the legal basis of current practice in the enterprise? And within the framework of this brief analysis, from which level should such a diverse subject be approached?
"At the highest level, things get less cluttered up ", General de Gaulle is said to have retorted to the Chairman of the SNCF (French National Rail), who had come to expound some important issue. It is also the best way to proceed in legal matters: to shed light from the top down on specific difficulties; because general principles and in-depth perspectives help to customize concrete answers, which are to be applied in the practical field. Therefore, instead of delineating all the applicable rules, it seems more relevant to be recall some fundamental tools which will contribute to our understanding of specific situations and help us provide a more adequate response.
France is a Rechtsstaat , a State subject to the rule of law. It is a primary assertion, but which is essential to the subject. The concept of the rule of law has become widespread since the fall of the Berlin Wall, and has taken on a variety of meanings. For our present requirements, we only need to define it as follows: in any given society, freedom is practiced within a specific framework established by law. Freedom is not absolute. From the French Declaration of the Rights of Man in 1789  to the European Convention on Human Rights  – recognized by the Court of Strasbourg, even freedom of religion is to be exercised within the limits established by public standards (a constitution, various laws and regulations). Of course we may philosophically or socially invoke the superiority of such and such a religious rule or ancestral custom; this “moral” primacy does not have precedence in the legal order, such as it exists at any point in a given society.
In other words, an enterprise, like a natural person or a State, a regional or local authority is not bound by standards of any other nature than those of the law of the country. The old medieval quarrel over the precedence of divine or human law has been settled in France with the primacy of Caesar's over God's law. No matter if religious law allows polygamy, requires the prior agreement of the husband for a wife to obtain a divorce or requires the wearing of a turban: monogamy as established in the French Civil Code is mandatory for everyone in France, and so is the equality of the spouses in a divorce case or the respect of safety regulations on a construction site.
This primacy of the official law is not specific to France; it is a Latin legacy which we share with countries sharing the same cultural and legal tradition as ours. It is a very different story in the case of the Anglo-Saxon tradition, which grants priority to the individual over the collective order established by law. In Canada for example, any person can invoke his or her religion – which the Supreme Court of Ottawa defines as: “what I sincerely believe in”  – in order to disregard a common rule. There, where the population is composed by 97% of more or less longstanding immigrants, respect of cultural diversity has become a constitutional principle which allows the recognition and protection of about forty different “cultural communities”, with their official identity markers (country of origin, religion, race, etc.), something which would be completely unthinkable in continental Europe. Other cultures, other customs! We may however observe that the Anglo-Saxon culture is progressively influencing ours, globalization oblige…
France is a secular country. This rule is engraved on the pediment of our constitution; it dates back to December 9, 1905 when a law separated the Churches from the State. It means that our Republic is neutral when it comes to religion, and that it respects all beliefs without ever intervening in this domain .  It has been said that secularism was the privatization of religions. This is absolutely true if “privatization” is used with the meaning of the privatization of a public-owned company; for under the regulations of the Concordat of 1801 religions were public administrations. But privatization does not mean relegating religion into the private domestic or family sphere alone: religions are private matters on the same account as most economic, social or cultural activities, and they have a rightful place in the social sphere, thus also in the workplace.
This is the reason why, for employees in a company, freedom of belief and religion entails rights that French law recognizes and protects. These rights are to be exercised under the conditions defined by the law. They first surface in the constitutional principle of equality, a direct consequence of French secularism: no discrimination can be made between persons of different cultures or religions, for example under Labor Law. When hiring and in all aspects of professional life, it is strictly forbidden to take into consideration either of these elements . Similarly, for example, no computer file can hold religious information, unless otherwise agreed by the person concerned . The employee’s freedom of religion is thus much protected. There is only one exception to this rule: the so-called “confessionally-oriented enterprises” (entreprises de tendance) for which religious or cultural affiliation is absolutely decisive; but if one can understand why the rabbi employed by a synagogue has to be Jewish, the same requirement does not necessarily apply to a wholesaler of halal meat or to a teacher in a Catholic school.
To a large extent, and unlike many others, the tradition which prevails in France is against the legal recognition of communities, which postulates the application of different rules to different cultural or religious communities in some domains . Similarly, the Anglo-Saxon custom of positive action cannot be introduced in France, insofar as it distinguishes populations on the grounds of criteria which a secular State refuses to take into consideration .
Enterprizes are free. It is important to recall this third, key principle; yes, companies possess a great deal of freedom in matters of staff management.  By the means either of internal rules, internal notes, or even special conditions specified in work contracts, a company is entitled to require many things; work schedules, duration of breaks, periods of leave, clothing for work, etc... Some banks are allowed, let us say, to require a very demanding dress code, and airline companies to impose standards of physical appearance when hiring flight attendants. These requirements can indeed be considered as necessary to enable a company's smooth functioning, image or reputation.
However, a company is also free to allow its employees to take breaks in order to pray, to wear clothing which are in keeping with their native culture, to take a leave of absence on religious holidays, etc. The company is to appreciate whether these practices are appropriate, and to evaluate their prospective indirect effects on other firms from similar geographic and professional sectors. On the contrary, the public sector, as subject to the strict principle of neutrality, does not benefit from the same freedom.

Companies' rights versus employees' rights. Reconciling both requirements requires walking a fine line, subject to a few general rules and moreover, left to internal negotiation possibly under the control of a Judge. Three simple principles can however be deduced from the laws in force, case law and the 's recommendations :
1- Companies can place restrictions and limits on employees' rights and liberties, but only if it is justified with regards to the nature of the task to be performed and proportionally adjusted according to the intended goal ; common causes are safety, health, hygiene and interaction with the public. This right cannot lead to justifying general and absolute interdictions such as prohibiting any religious symbol or clothing from being worn within the whole company.
2- An employee must not abuse his rights or his freedom. He cannot invoke religious or cultural obligations in order to refuse to perform his contractual duties or observe his legal and regulatory obligations. Neither can he overuse his freedom of speech for proselytizing purposes or to exert pressure on staff or customers.
3- Any contradiction between company and the employee rights primarily leads to seek some form of potentially amicable conciliation.  For instance, a leave of absence for a religious holiday should be granted if another employee can easily stand in for the person asking for it (eg: an assembly-line worker or a supermarket cashier); if not it can be refused. In Canada this course of action is described as “reasonable composition”, an expression which accurately reflects the duty which is incurred by a company, prior to any potential litigation: the obligation is one of means, not of outcome. 

A company's legal certainty in its practice of religious and cultural diversity thus relies on a general framework established by law; however this framework does not provide clear and unequivocal answers to practical issues . Discretionary and negotiation powers remain important; this illustrates the freedom of both parties. No wonder a large panel of choices is made by some companies. Similarly it would be rash to prematurely over-generalize on the basis of a specific ruling handed down by such and such a court.  However a base-line, reflecting our society's general trend, may be said to be increasingly discernible: the growing trend towards the protection of individual liberties.

Lecturer in Public Law
June 2011