Basham, Ringe y Correa
Claeys & Engels
Funes de Rioja Abogados
The United Kingdom and other countries have experienced recent acts of terrorism in in the name of religion, with the United States seeing an increase in protests by extremist groups. When employees holding or expressing extremist views bring those views to the workplace, it can create numerous management issues, creating polarization and division among employees, frequently resulting in disputes, disruptions and other unwanted conduct. Even conduct engaged outside the workplace can create concerns, especially when that conduct is made public through commercial media or, as is frequently the case, on social media. While U.S. and U.K. workplace laws are not identical, in managing the repercussions of extremist behaviour by employees, a primary focus of employers in both jurisdictions is ensuring the safety of the workplace, followed by ensuring employees are free of harassment or discrimination because of religious beliefs or any other protected rights. Companies should promote tolerance and acceptance of different views in the workplace. However, allowing employees to hold differing religious or political views must be balanced with the obligation to provide a safe work environment. For employers, it is this competing obligation that creates the greatest challenge.
One of the problems with religious extremism is that there is no agreement about its definition. Different groups and organizations define it differently. In general, extremism is defined as an ideology violating common moral standards. This can be true of any behaviour that reaches a point where it is deemed extremist, whether religious or political. The laws of the U.S. and the U.K. both prohibit religious discrimination in the workplace, and protect the right of employees to express religious beliefs. Thus, employers in both countries must manage workplace demonstrations of extreme beliefs, whether religious or some other strongly held point of view, in a way that does not infringe on the protected religious views of the employee.
Title VII of the Civil Rights Act of 1964 is the primary federal U.S. law that prohibits religious discrimination in the workplace as to any employment decision. Both federal and state laws prohibit employers from taking any employment action based upon an employee’s religious views. Employers may not treat employees differently due to their religious beliefs and, if a conflict arises between a religious practice and a workplace policy, the employer must try to accommodate the employee’s religious practice.
The Equality Act 2010 protects these rights in the U.K., and there is the expectation that employer practices can be adapted to accommodate employees’ beliefs. Hiring or termination decisions based upon an “extremist” religious view could create a risk of discrimination claims. Although extremism is not classified as a protected characteristic, the employee’s religion and belief must be worthy of respect in a democratic and civilized society. In some circumstances, employers may take action that limits a U.K. worker’s freedom of expression. However, such limitations must be justified. The factors considered in evaluating justification include when the statement was made; the nature of the employee’s work and the position; and what damage the employer may suffer as a result of the statements.
When Extremism Creates a Safety Risk
Both U.K. and U.S. employers are obligated to provide a safe work environment. This obligation allows and, in fact, requires, employers to manage extremist behaviour displayed at work, whether for religious reasons or another cause. Employers may manage workplace safety in a number of ways, including background screening at the time of hire, monitoring during employment, and establishing internal policies and procedures regarding acceptable workplace behaviour. The methodology is usually defined or restricted by legal requirements.
In addition to the general statutory obligation to protect the health and safety of workers, a U.K. employer must conduct a risk assessment to identify and minimize, as far as reasonably practicable, the health and safety risks employees face while at work. For employees traveling for work abroad, preventative and protective measures may include such various considerations as vaccinations, security guards, insurance and emergency contingency plans. U.K. employers are permitted to conduct background checks; however, this practice is highly regulated, particularly by the Data Protection Act (1998). Likewise, while employers are permitted to monitor employees’ activities, any monitoring must be consistent with Article 8 ECHR (right to respect for private and family life). The interception of communications is also subject to additional regulations.
Employees in the U.K. that express extremist views at work may create a hostile work environment for other employees. In response to such conduct, the employer may take action under anti-bullying or anti-harassment policies or even through the use of health and safety policies.
U.S. employers have a general duty to provide a safe work environment that is set forth in the Occupational Safety and Health Act (OSHA). One method commonly used to accomplish this in the U.S. is background screening. A background screen is permissible by both federal law and by many states, so long as the inquiries or information regarding religion is not factored into the hiring decision. The background screening is also subject to other scrutiny to ensure that inappropriate factors are not relied upon in making an employment decision. Another method of ensuring a safe work environment is monitoring employees’ workplace activities. While an employer must provide notice of its intent to conduct such monitoring, the monitoring of workplace activity such as computer, internet usage, and GPS activity can be useful in determining if there is a possible threat to the organization.
However, a company’s most useful tool for managing extremist behaviour of any kind is a clearly defined set of workplace rules for conduct and behaviour that establishes a “no-tolerance” policy for serious or severe conduct issues. Generally, an employer can adopt strong anti-harassment and workplace violence policies to address behaviour that is considered extreme or inappropriate for the workplace. Employment decisions based on a violation of the rules would be based upon a legitimate business interest, such as providing a safe workplace and should, therefore, not run afoul of the protections against religious discrimination. But, like the U.K., in the U.S., inappropriate conduct that occurs away from the workplace should be given more scrutiny before taking any employment action.
The most significant way an employer can protect its workforce from extremism is by implementing strong internal policies that clearly define the expectations at the workplace. However, since there is not a definitive or clear definition of extremist behaviour, employers in the U.S. and U.K. must try to balance the competing interests of keeping the workplace safe and respecting the varying religious and/or political views held among employees.
The recent acts of terrorism in the name of religion around the globe, the political protest in Brazil, along with the protests in the United States by extremist groups, have created management issues for all employers. This issue is no longer isolated to one country; the ramifications of extremist views have been experienced globally. While not agreed upon, extremism is generally defined as an ideology violating common moral standards. This can be true of any behaviour that reaches a point where it is deemed extremist, whether religious or political.
It often creates issues when employees hold or express extremist views, whether religious or political, and bring those views to the workplace. Such actions can result in disputes, disruptions, and other unwanted conduct in the workplace. Managing the conduct and repercussions of extremist behaviour by employees has become a primary global concern for employers because of the need to ensure the safety of the workplace and to provide a workplace that is free of harassment or discrimination because of religious beliefs or any other protected right. Most global employers must allow employees to hold differing religious or political views, thus employers must balance the religious freedoms with the obligation to provide a safe work environment.
Countries such as Chile, Argentina, France, Mexico, Denmark, Belgium, the U.S. and the U.K. prohibit religious discrimination in the workplace and protect the right of employees to express religious beliefs, in varying degrees. Employers in these countries must manage workplace demonstrations of extreme beliefs, whether religious or some other strongly held point of view, in a way that does not infringe on the protected religious views of the employee.
Employees in the U.K. and the U.S., are protected by specific laws which also require employers to adapt workplace practices to accommodate employees’ beliefs if a conflict arises. In Denmark, in some situations, an employer will have an obligation to accommodate religious and political views. But on the opposite end is Belgium, where there is no explicit requirement for an employer to accommodate an employee’s religious beliefs.
Ensuring Workplace Safety When Managing Employee Extremism
After protection of religious beliefs, another commonality is the employer’s obligation to provide a safe work environment for its workers. This obligation not only requires, but permits, employers to manage extremist behaviour displayed at work, whether for religious reasons or another cause. Most countries, including the U.S., see this obligation as a general duty to provide a safe workplace. However, France and the U.K. have additional criteria for providing a safe workplace.
An employer in France has a safety obligation that is generally considered as a “result obligation,” meaning that the employer must do more if the employer had or should have had knowledge of the risk encountered by an employee and did not take the necessary measures to prevent such risk, it is liable. Likewise, a U.K. employer must conduct a risk assessment to identify and minimize, as far as reasonably practicable, the health and safety risks employees face while at work. Both countries seek extra protection for employees traveling for work abroad; preventative and protective measures may include such various considerations as vaccinations, security guards, insurance and emergency contingency plans.
To ensure workplace safety, employers can implement a number of different methods, most of which are defined or restricted by legal requirements that vary by country. The most common ways of managing the workplace include background screening at the time of hire, monitoring during employment, and establishing internal policies and procedures regarding acceptable workplace behaviour.
Background screening is one methodology often used by employers at hiring to help ensure a safe workplace. Mexico, Argentina, and Brazil are just a few of the countries that do not permit background screening due to privacy laws. However, most countries have regulations that direct and control the use of background screening. U.K. employers must satisfy the highly regulated Data Protection Act (1998) in conducting background screening or monitoring the behaviour of employees. Likewise, when conducting background screening in Belgium, an employer must satisfy a number of provisions such as CBA nr.38 on recruitment and selection, the data protection and anti-discrimination rules, but screening on information related to religious or political beliefs could be viewed as discriminatory. In the U.S., background screening is permissible by both federal law and by many states, so long as information regarding religion or other prohibited characteristics is not factored into the hiring decision.
Monitoring the employees’ workplace activities is another way of ensuring a safe work environment. Most countries such as Mexico, U.S., U.K., Belgium, and Argentina permit the monitoring of workplace activities, but require employers to provide notice of the intent to conduct such monitoring and advise employees that there is no expectation of privacy. Mexican and U.S. employers may also utilize surveillance cameras within the workplace, as well as monitoring employees’ communications. Likewise, Brazilian employers have the right to monitor the workplace by CCTV and GPS on company vehicles, monitor the use of e-mail and internet, as well as screen public information (including social media). Employers should be cautioned against making professional decisions based on matters of strictly private interest, such as political activity or religious activity.
Internal Company Policies
The majority of countries addressed encourage the employer to enact and adopt internal regulations and policies, which are the most useful tools in managing extremist behaviour of any kind. To do this, an employer needs a clearly defined set of workplace rules for conduct and behaviour that establishes a “no-tolerance” policy for serious or severe conduct issues. Belgium relies upon a policy of good conduct to define the company values and expectations to combat extremist behaviour. A violation of the rules would allow a company to make an employment decision based upon a legitimate business interest, such as providing a safe workplace, and would remove religious or political reasons from the basis of such decision, therefore not conflicting with any religious or political protections.
How to manage employees with extreme beliefs will continue to be an ongoing issue that will require the global employer to continue to look to find the appropriate balance between tolerance of religious or political views and tolerating intolerance in an effort to satisfy the uniform concern of keeping the workplace safe for all workers.
Reprinted with permission from November edition of Texas Lawyer. © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.Basham, Ringe y CorreaCAPSTAN AvocatsClaeys & EngelsFordHarrisonFunes de Rioja Abogados Lewis SilkinMunita AbogadosNorrbom VindingVeirano