A case decided in England has raised important issues about the Freedom of Religion and Expression. Specifically, a woman decided to wear a cross around her neck to work – as a member of British Airways – and her employer was not particularly accommodating. In fact, the woman was restricted from wearing the cross pursuant to her conditions of employment – namely, that employees who decided to wear certain “accessories” for religious purposes needed to have such accessories covered at all times. If hiding the religious accessory would be impossible – given the nature of the item and the way it was to be worn – then the employee would have to go through local management in order to ensure that the religious accessory adhered to British Airways’ strict uniform code. Additionally, when an employee on a particular day showed up for work wearing an item that was not in accordance with the uniform code – e.g., a religious accessory or item – the employee was forced to remove the item or accessory, or go home and change clothes.
On May 20, 2006 and August 7, 2006, Ms. Eweida of British Airlines decided to demonstrate her commitment to her Christian faith by not concealing the cross she wore around her neck. On the second date, her supervisor told her to conceal the religious accessory or she would be sent home without pay. On this occasion, Ms. Eweida obliged. However, she did not on September 20, 2006 and was forced to return home, without pay, until she decided to comply with her contractual obligation of conforming to British Airways’ uniform code. On October 23, 2006, Ms. Eweida was offered an administrative position, where she would not have any contact with the public as was required in her previous position. She promptly rejected this offer, and filed a labor grievance.
A number of news articles were highly critical of British Airways regarding the case involving Ms. Eweida. Accordingly, beginning on February 1, 2007, the display of religious symbols was permitted on a British Airways uniform “when authorized.” The Star of David was immediately authorized in all cases, and Ms. Eweida was also authorized to wear her cross around her neck to work. She returned to work on February 2, 2007
However, British Airways refused to compensate Ms. Eweida for the time she chose not to come to work during the dispute. Thus, she filed a claim with the Employment Tribunal claiming discrimination of her religious faith. The tribunal held that the visible wearing of a cross was not a mandatory requirement of the Christian faith; rather, it was her personal choice. The tribunal also found that there was no evidence that any other employee, in a uniformed workforce numbering some 30,000, had ever made such a request or demand, much less refused to work if it was not met. The tribunal then reasoned that Ms. Eweida had failed to establish that the uniform policy had put Christians generally at a disadvantage, as was necessary in order to establish a claim of indirect discrimination.
Did this case come out the right way? Do you agree that only the mandatory” requirements” of the wearing of religious accessories should be regarded in the Tribunal’s analysis of indirect discrimination? Was the offer of the administrative position a feasible alternative to the conflict between Ms. Eweida’s desire to wear her “religious accessory,” and British Airways uniform code?