What’s in a name? Juxtaposing Indirect Discrimination and Reasonable Accommodation on the basis of Religion in the European Workplace
Prof. Katayoun Alidadi, Assistant Professor of Legal Studies
Bryant University, Smithfield, Rhode Island
Harvard Human Rights Journal Online
This note was written in preparation for the April 18, 2020 Workshop convened by the Harvard Law School Human Rights Program (HRP) which seeks to explore, in a comparative and cross-disciplinary manner, the concept of indirect discrimination on the basis of religion.
I focus on the legal norm prohibiting indirect discrimination in the European workplace, and its interrelation with the concept of reasonable accommodation based on religion or belief in the same employment-related setting.
On a final law school exam, I posed the following question: “Please describe in your own words what ‘indirect discrimination’ means and provide an example of such discrimination on the basis of religion or belief”.
The class was an upper level Anti-Discrimination Law class at the Catholic University of Leuven in Belgium, and the European law students taking the exam had been lectured on the concepts of direct and indirect discrimination in the frame of EU Directives on Discrimination in the workplace. Students had been lectured in an auditorium on the concept and various illustrations of religious discrimination in the workplace, including examples where workers were discriminated because of wearing religious dress/hijab, and with their facial expressions and body language indicated that they had a grasp on the concept and understood the examples.
However, if these law students’ answers to the prompt essay question are to be any indication, there remains much confusion and mystery surrounding the concept of indirect discrimination on the basis of religion (or on other bases). The concept is inherently complex and unintuitive, yet it is one which should be applied in everyday work situations by non-legal minds. If law students struggle to grasp the concept, how are we to expect HR professionals, trade union representatives, or individual employees to comprehend and apply a concept which is hard to grasp for the fledgling but focused legal mind? One EU scholar, Dagmar Schiek, raised the pertinent question: “[w]hy would a legislator introduce a concept as complicated as indirect discrimination?”
Elsewhere I have argued that the complexity (and pejorative meaning) of indirect discrimination presents another related concept – the duty to reasonably accommodate for employees’ religion of belief – a more effective tool for religious minority workers in Europe.
In this note, I want to build on this argument – my hope is that the juxtaposition with the concept of reasonable accommodation (which in the European framework is reserved for persons with disabilities but in the US was first introduced in 1972 in the context of religious discrimination in Title VII of the Civil Rights Act of 1964) will bring out characteristics and weaknesses of indirect discrimination which then could be assessed and addressed.
First, let’s look at the place of the prohibition of indirect discrimination on the basis of religion or belief in the European Union.
The prohibition of indirect discrimination is one of the cornerstones of EU non-discrimination law, where the right to a treatment free of discrimination, including on the basis of religion or belief in employment, is firmly enshrined under EU law and domestic laws. The language of ‘indirect discrimination’ figures in the text of the Directive itself, as well as in the domestic legislation that implements the Directive across the Member States (unlike Art. 26 ICCPR).
In particular, EU Council Directive 2000/78/CE (“Employment Equality Directive”) established a general framework for equal treatment in employment and occupation and aims to combat discrimination on the grounds of religion or belief, as well as disability, age and sexual orientation. The 27 EU Member States, as well as the UK, have implemented this Directive into their domestic legal systems, often going beyond the minimum requirements (for instance, by expanding the protection to other discrimination grounds or areas of social life like education or health; few have added a duty of reasonable accommodation for religion or belief). The Directive prohibits direct and indirect discrimination, harassment and instruction to discriminate on the basis of religion or belief, disability, age, or sexual orientation, all as regards employment and occupation. It also mandates reasonable accommodations for individuals with disabilities, but fails to do so for the ground of religion or belief.
In 2014, the European Commission explicitly acknowledged the difficulties faced by Member States when implementing indirect discrimination, saying:
“The concept of indirect discrimination is complex and many Member States had initial difficulties in transposing it correctly. It is now enshrined in law, but its application in practice remains a challenge. To illustrate the problem, some Member States report that concerns have been expressed about the lack of clarity or lack of understanding of the concept of indirect discrimination in national courts. Other Member States point out that they do not yet have any case-law providing interpretation of indirect discrimination”.
The indirect discrimination concept was developed through the jurisprudence of the then-European Court of Justice (now called Court of Justice of the European Union) starting in the 1960s in the area of sex discrimination, and it has been essential in tackling structural barriers as well as more covert practices and norms that limit or disadvantage some. While “direct discrimination” occurs when one person is treated less favourably than another on the basis of one of the protected characteristics, “indirect discrimination” refers to “an apparently neutral provision, criterion or practice” which places persons of certain protected characteristics at a particular disadvantage compared with other persons. A claim for indirect discrimination entails assessing two elements: the existence of a detrimental effect, and the objective justification for a measure. Differences in treatment directly based on religion or belief cannot be justified unless the conditions for a “genuine occupational requirement” are met, and provide that “the objective is legitimate and the requirement is proportionate.” When the link to religion or belief under a difference of treatment is indirect, however, there is an open justification regime, i.e. the measure can be justified by showing that there is a legitimate goal and the means of achieving this goal are appropriate and necessary. This open justification regime gives the local judge substantial leeway to determine the outcome of disputes. But if a situation falls under direct discrimination, the judge’s hands are much more tied. In the European context, this means that more uniformity or harmonization across Member States’ domestic legal systems can be expected if a certain practice constitutes direct discrimination.
When an employer adopts a policy that prohibits all employees to wear headgear, including the hijab, does this constitute direct or rather indirect discrimination? So-called company ‘neutrality policies’ are on the rise, so the question is key for the legal community to answer. This answer to a large extent will determine who wins – the employer or the employee – and what the chances are for religious employees to be included in the mainstream labor force. This is similar to different standards of review adopted under American constitutional law: few norms or practices will pass strict scrutiny, while rational basis review cases will often pass the test.
The EU has a high court which can provide guidance to the Member States. Religious discrimination cases have become a staple for some domestic courts, but it was not until 2017 (17 years after the adoption of the EU Directive) that the CJEU’s role in developing the law in this area was on display. Indeed, on March 14, 2017, the CJEU issued two highly anticipated judgments interpreting the prohibition of religious discrimination under the Employment Equality Directive.
Surprisingly, even after these first religious discrimination cases reached the CJEU, the answer is far from clear. In its now infamous Achbita judgment, the CJEU partially followed the advice of the German Advocate General, Juliane Kokott, in this regard, holding that the prohibition on employees wearing any visible signs of their political, philosophical, or religious beliefs in the workplace did not give rise to direct discrimination as long as certain conditions were met. Thus, so called private company “neutrality policies” were not seen to constitute direct discrimination, but rather indirect distinctions – and these can be legitimized under an open justification regime.
Strikingly, the British Advocate General took an entirely different approach, one which was much more protective of religious manifestations – which may reflect a divide between the characteristics of the respective countries (Germany and the UK). With the UK no longer part of the EU, the latter approach is lost. British AG Eleanor Sharpston delivered her opinion on July 13, 2016, in a very similar French headscarf-religious discrimination case; in the case of Asma Bougnaoui v. Micropole SA, AG Sharpston considered the dismissal of a Muslim design engineer for wearing a headscarf when dealing with the employer’s customers (who complained because her wearing of a veil had “embarrassed a number of its employees”) to constitute direct discrimination based on religion. In contrast, in order to reject the stance that employment exclusion based on religious dress (the headscarf) could amount to direct discrimination, AG Kokott reasoned:
“[I]n its previous case-law concerning various EU-law prohibitions on discrimination, the Court has generally adopted a broad understanding of the concept of direct discrimination, and has, it is true, always assumed such discrimination to be present where a measure was inseparably linked to the relevant reason for the difference of treatment.”
However, all of those cases were without exception concerned with individuals’ immutable physical features or personal characteristics — such as gender, age or sexual orientation — rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here.’
This then led to the conclusion that the company neutrality policy adopted by the employer, G4S, subsequent to the employee headscarf dispute “cannot properly be classified as constituting direct discrimination.” For AG Sharpston, a different characterization of religious manifestation together with interpretations of EU anti-discrimination law which seek to be “effective” led to a differing outcome.
The CJEU’s approach in these two sister cases left some commentators perplexed: while it became clear that so-called “neutrality policies” could be justified under certain conditions in the EU (e.g. consistent and systematic application, limited to employees who come into contact with customers), the European Court also advanced a limited form of reasonable accommodation (e.g. offering an alternative, back-office position instead of dismissal). It should be clear that characterizing such policies as direct discrimination would not only have fostered a much higher protection for religious employees but also a more uniform treatment across Member States. As it stands, under an indirect discrimination characterization, domestic courts can and do adopt divergent approaches which leads to different outcomes in similar disputes, making for a legal field that is in flux and a protection that is fragile at most. It is unlikely that the EU will impose a duty on European employers to reasonably accommodate the religious beliefs and practices of their (often religious minority) workers, similar to the conditions under Title VII of the Civil Rights Act of 1964 in the US. Yet when we talk comparatively about the concept of indirect discrimination and its role in making anti-discrimination law an effective tool for employees who stand to be discriminated for their religious beliefs or practices in Europe or elsewhere, a conversation about the alternatives to indirect discrimination is indispensable.
Reasonable accommodation: adding value?
The concepts of reasonable accommodation and indirect discrimination are related, and may even be seen as functional equivalents, but there are differences. On the one hand, the concept of indirect discrimination could be regarded as more encompassing and implying a much higher burden/duty on employers in comparison with a duty to reasonably accommodate. When a measure or situation is considered to disadvantage a certain group by its very design, it should be corrected so it does not hurt potential and future employees. A simple accommodation for a current/individual employee would not seem to suffice. Also, if there is talk of discrimination, economic cost arguments seem unlikely to succeed under the justification test:
“[T]he defence to a failure to provide reasonable accommodation is that it would result in a disproportionate burden, which explicitly allows for factors such as cost to be considered. The defense to a complaint of indirect discrimination is that the challenged measure was objectively justified, and issues of cost are less likely to be regarded as meeting this test.”
In this sense, depending on the standard adopted for assessing reasonable accommodations, indirect discrimination could be considered a stronger tool for employees. What’s more, reasonable accommodations could also be seen as limiting a duty not to indirectly discriminate if the employer can use it as a shield to show he met his obligations under anti-discrimination law.
On the other hand, indirect—as well as direct—discrimination requires a group disadvantage and going through a comparison exercise, since the claimant must show that a requirement would put persons of a particular religion or belief at a particular disadvantage compared with others. Because of this legal-technical group disadvantage requirement, certain claims have been blocked from receiving appropriate consideration under the equality framework.
In contrast, assessing a claim for reasonable accommodations requires no such showing of group disadvantage, since the concept aims for tailored measures that meet individual needs and situations. This is significant because:
“[D]isadvantage is not necessarily experienced by all or most members of a particular group, but is … experienced on the individual level depending on both individual and environmental factors. Such individual forms of disadvantage can only rarely be revealed by making of group comparison, which is characteristic for both direct and indirect discrimination standards. Reasonable accommodation discrimination therefore requires a different approach to do justice to the particularities of an individual in a given situation.”
The fact that accommodations do not require group disadvantage implies that it is a symmetrical instrument that is not only aimed at empowering minorities but also benefits members of the majority in certain circumstances. This is illustrated by the four cases concerning Christianity in the UK. The Eweida case illustrates how the group disadvantage requirement under the prohibition of indirect discrimination can be paralyzing for (true or alleged) “sole believers,” notwithstanding that it could be argued the Court of Appeal erred in qualifying the request to visibly wear a crucifix as an idiosyncratic wish of the employee. The UK Court of Appeal dismissed Eweida’s claim of indirect discrimination, although it was shown that Muslim women were allowed to wear a headscarf and Sikh men could wear turbans on the job. In fact, unlike in an earlier workplace religious symbol case, the Court never reached the justification stage of indirect discrimination. This is similar to cases under Article 9, which are filtered without there being an assessment on whether the restriction is justified, necessary and proportionate.
The “complicatedness” and “indirectness” of indirect discrimination no doubt detracts from its meaning in everyday life. Considering the complexity of the notion of indirect discrimination, there is a need to, on a continuous basis, demystify the importance of (and the idea behind) indirect discrimination, e.g., through information campaigns directed at employers and employees, and in the classroom.
In contrast, the language and framing of issues in terms of accommodations is much more intuitive and straightforward, even if applying the various elements (reasonable, disproportionate/hardship) raises particular legal issues. “Directness” of the language of reasonable accommodations refers to the fact that the specific goal is to advance solutions in terms of accommodations that meet individual needs in a given context. More “indirect” provisions appear less reliable at securing this type of thinking. Thus, the reasonable accommodations route seems to achieve in a more direct and effective fashion what indirect discrimination indirectly aims to achieve by way of a legal fiction. In this respect, language, as an important element pleading in favour of reasonable accommodations, cannot be overseen. Language is a key element in debates on discrimination and equality: foreigner, outsider, stranger, alien, and minority are all terms that can be used to denote certain groups, some with more stigmatizing connotations than others. Language is also key in law and its application. From the perspective of sociology of law, when the addressees of a legal rule (mainly employees and employers under the current EU non-discrimination law; a much larger target group under the proposed horizontal directive) do not understand a rule, that rule is bound to be ineffective in practice.
In addition, the “reasonableness rhetoric” resonates better in a conciliation mode of resolution than in the conflict-based discrimination framework and could produce better results in practice by avoiding the litigation route. Being approached for failing to reasonably accommodateor discriminating against an employee may mean the same thing in legal parlance but will be perceived differently by an employer. The first may trigger a far less defensive response that conserves space for negotiation. Once a legal claim has been presented though, this subtle difference in connotations can be considered absolved, but while negotiations are pending it may be significant to the course of events. The fact that the reasonable accommodations terminology allows a potential conflict situation to be framed in positive language makes it a potentially powerful instrument for employees. One effect may be that this could potentially redress the tricky problem of “self-excluding” behaviour on the part of employees, who anticipate and avoid conflicts by strongly limiting their own options. For Somek:
“[R]ecognizing the role of accommodation marks a shift from the distributive towards the decommodifying dimension of anti-discrimination law.… Anti-discrimination law protects, where inequality arises, the most fundamental interest of people to stay who they are within society, even if that society is strongly inclined to force them into self-denial or send them away.”
Recognizing reasonable accommodations signals that employees too can “stay who they are”, and that they are not “forced into self-denial” when there is no compelling reason justifying such restrictions.
Failings of indirect discrimination
Despite its promising beginnings, the achievements brought about in practice through the concept of indirect discrimination have been called disappointing. While there is the potential to unmask rules taken for granted that in effect are structurally disadvantaging to some, indirect discrimination can “never bring about the changes required to eliminate structural discrimination, but only allows individuals to challenge the results of such practices in limited circumstances.” Schiek argues:
“[A]ny disappointment is due to overburdening the prohibition of indirect discrimination with the expectation of achieving all the substantive aims of discrimination law and policy at large, although indirect discrimination is only a small part of equality law and policy in their entirety…. indirect discrimination law is linked to substantive equality, while not providing for measures to achieve this aim.… Indirect discrimination law is restricted to a prohibition to exploit existing inequalities and to stabilize further or even increase them. Positive duties to combat structural disadvantage remain with public institutions or such social institutions that are under specific responsibility.”
The same risk of disappointment exists in case too much hope is placed on reasonable accommodations. Here it suffices to say that the ability of law, as a blunt tool, to bring about transformative changes to everyday life is not boundless.
In the organization of working time and space, the various rules, practices and standards reflecting majoritarian consensus can unintentionally but effectively restrict, disadvantage or even exclude employees who adhere to non-conformist beliefs and practices. To religious minorities such as Jews, Muslims, and Seventh-Day Adventists living in Europe, it is clear that the Sunday closing laws and public holiday schedules are not designed with them in mind. Similarly, Muslims and Sikhs may feel disadvantaged by so-called “neutral” or professional work dress requirements which conflict with some elements of religious modesty and dress. Some communities have found creative ways around these obstacles, where their deeply-held beliefs or religiously mandated practices conflict with mainstream professional duties, such as in the case of the French “Bureau du Chabbath” set up to link Jewish job applicants with open positions that guarantee the Sabbath and days off for Jewish festivals. But more common are individual strategies to find various “coping mechanisms.” These coping mechanisms, which often imply personal and family sacrifices, may include adaptation, negotiation, choosing from a limited range of employment options, self-employment or pulling out of the labour market all together.
In this regard, the prohibition of indirect discrimination under the Employment Equality Directive can play a pivotal role. Indirect discrimination on the basis of, for instance, disability or religion or belief is the realization that seemingly neutral provisions, criterions or practices can put persons with a disability or of a particular religion or belief at a particular disadvantage compared with other persons without these characteristics (able-bodied; belonging to the majority religion, or having no religion in some contexts). Such indirect discrimination requires a group disadvantage, and is only accepted if it is objectively justified as being necessary and proportionate for a legitimate aim. A more direct and positive way of addressing the issue is to award individuals the right to reasonable accommodations.
I have argued that there are both “tangible” benefits of reasonable accommodation, in the sense of legal-technical shortcomings under human rights and indirect discrimination (which could lead to more appropriate outcomes in particular cases), as well as more “intangible” reasons that relate to the appropriateness of the language and framing to address the situation and claims of religious individuals in secular workplaces (even if such does not necessarily lead to different outcomes). Indeed, framing claims of religious employees in terms of requests for reasonable accommodations has the potential to move the debate away from and beyond the dominant and pejorative “discrimination talk,” which is likely to trigger defensive reactions from “perpetrators.” The fact that “words matter” in the search for equality must be acknowledged: this is clear to People First disability advocates, having discussions on whether the people-first terminology (“individual with disability”) is preferable over terms that fit better in the social model (“disabled person” recognizes better that a disability may be due to external societal factors). In the same way that words describing people can help alter attitudes about those people, words that describe how those people’s situation in society should be addressed can effectuate a useful change in paradigmatic treatment.
 An alternative explanation is that the lecture failed to elucidate the concept sufficiently. But even that would be problematic for a concept that is to be applied on an everyday basis in the workplace.
 Schiek, “Indirect Discrimination,” in Cases (2007), p.324 [As reasons, she refers to the need to “prevent circumvention of specific prohibitions to discriminate,” as well as the “social engineering rationale” of aiding “the attainment of the wider goals of discrimination law in social reality,” referring to the aim of discrimination law to change socio-economic reality.]
 See Katayoun Alidadi, Religion, Equality and Employment in Europe: the Case for Reasonable Accommodation (Hart, 2017).
 See Directive 2000/78 art.5 establishing a general framework for equal treatment in employment and occupation  OJ L16/22.
 The EEOC argued that the prohibition of discrimination on the basis of religion under the 1964 Civil Rights Act implied a duty of reasonable accommodations. In 1972, after some courts did not accept this position, an explicit duty was included in the Civil Rights Act: 42 USCA s.2000 (e)(j); Dewey v Reynolds Metal Co 429 F. 2d 324 (6th Cir. 1970) (equally divided court).
 Directive 2000/78 art.2.2 (b) establishing a general framework for equal treatment in employment and occupation  OJ L16/22
 E.g. Directive 2000/78 to be transposed into national law by 2 December 2003 by the 15 ‘old’ Member States, by 1 May 2004 by the 10 ‘new’ Member States, and by 1 January 2007 for Romania & Bulgaria. See https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69
 Directive 2000/78 establishing a general framework for equal treatment in employment and occupation  OJ L16/22
 Commission, Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’) from the Commission to the European Parliament and the Council, Brussels, 17.1.2014, COM(2014) 2 final, 8.
 Lisa Waddington, The Expanding Role of the Equality Principle in European Union Law, 22.
 Dagmar Schiek, “Chapter three: indirect discrimination,” in Dagmar Schiek, Lisa Waddington and Mark Bell (eds), Cases, materials and text on national, supranational and international non-discrimination law (Oxford: Hart, 2007), p.323 et seq.
 EU Directive 2000/78, Article 2
 Schiek, “indirect discrimination,” in Cases (2007), p.372
 Art. 4 Directive 2000/78.
 Art. 2.2 (b) (i) Directive 2000/78.
 Nicholas Walter, The Utility of Rational Basis Review, Villanova Law Review 79 (2018) (“As every lawyer knows, the standard of review a court applies in a dispute is critical… three tiers of scrutiny. At one end of the scale is ‘strict scrutiny,’ which has been described as ‘strict in theory but, fatal in fact.’ At the other end is ‘rational basis’ review…”)
 See Case C-157/15, Achbita v G4S Secure Solutions NV; Case C-188/15, Bougnaoui v Micropole SA.
 See para 88. In para 63, AG Sharpston reasoned that the protection given by EU law against direct discrimination is stronger that under the ECHR, which does not know the direct-indirect discrimination dichotomy.
 Para 44-45, references omitted.
 It is argued that prior to this explicit policy, there was an ‘unwritten rule’ banning religious symbols. AT Kokott (too) readily accepted this argument.
 CJEU, Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA, Opinion of Advocate General Sharpston delivered on 13 July 2016.
 On the relation between the two concepts, See Vickers, Religion and Belief Discrimination in Employment-the EU law (2007); Kristin Henrard, “De Verhouding tussen de concepten redelijke aanpassing, indirecte discriminatie en proportionaliteit” in Christian Bayart, Stefan Sottiaux and Sébastien van Drooghenbroeck (eds), .De nieuwe federale antidiscriminatiewetten (Brussels: Die Keure/La charte, 2008), pp.257-295.
 Marc De Vos, “De bouwstenen van het discriminatierecht in de arbeidsverhoudingen” in Marc De Vos and Eva Brems (eds), De Wet Bestrijding Discriminatie in de praktijk (Antwerp: Intersentia, 2004), 81 (arguing that requirements under indirect discrimination are more stringent than under reasonable accommodations, related to the ground of disability but also in a general conceptual way)
 Waddington, “reasonable accommodation” in Cases (2007), p.644.
 For the U.S.: Roberto Corrada, “The Supreme Court and title VII”, Liberty Magazine January / February 2003, http://www.libertymagazine.org/index.php?id=1273 [Accessed September 21, 2012] (describing a case involving an air traffic controller (Don Reed) winning $ 2.25 million verdict in a Denver district court: “but he won because the jury found disparate treatment, that Reed’s employer had treated him differently because of his religion … If Reed had been left to argue only that his employer refused a reasonable accommodation, Reed might not have prevailed.”) In the US, “disparate impact” is the most frequently term, instead of indirect discrimination.
 Day and Brodsky (1996), “The Duty to Accommodate: Who Will Benefit?”, 75 La Revue Du Barreau Canadien 433-473 (criticizing the Canadian jurisprudence in this regard).
 Lisa Waddington, ‘Chapter six: reasonable accommodation’, 745.
 Lisa Waddington, “reasonable accommodation” in Cases (2007), p.745.
Eweida v British Airways  EWCA Civ 80.
 Schiek, “indirect discrimination,” in Cases (2007), p.330: “group disadvantage is the starting point of indirect discrimination….[But] just establishing group disadvantage is not enough to establish a claim for indirect discrimination.” KA: The group advantage requirement of ID is in this perspective seen as a disadvantage-reason is mal-suited to address certain situations arising in practice. However, the lack of a (robust) group requirement can also be criticized, with concerns of persons being turned “into laws upon themselves”. (see Barnard and Hepple referred to in Schiek at 331: “This [individual-oriented] interpretation would conflate the concepts of direct and indirect discrimination.” With regard to the EU Racial Equality Directive].
 Arguably this is not a correct reading of either the belief of the claimant or the indirect discrimination concept, so that this problem is not inherent to the tool of indirect discrimination: Yet this is a standard that is derived from the concept of indirect discrimination as formulated in the EED, different from a duty of reasonable accommodation which in its formulation (e.g. art.5 EED) recognizes the individual nature of measures so that no such requirement could be read in the RA duty.
 Azmi v Kirklees Metropolitan Borough Council  ICR 1154.
 E.g. in X v United Kingdom (8160/78) 12 March 1981, a school teacher of Islamic faith working for the Inner London Education Authority (ILEA) sought a (modest) time accommodation to be able to attend collective Friday prayers at the local mosque. His claim was dismissed as inadmissible based on the reasoning that the employer could rely on the terms of the contract the employee had signed and committed to as well as the employee’s freedom to resign. See also Konttinen v Finland App no 24949/94 (EComHR, 3 December 1996) and Stedman v United Kingdom App no 29107/95 (EComHR, 9 April 1997) (involving a Christian who refused to sign a new employment agreement requiring regular work on Sundays).
 See Katayoun Alidadi/RELIGARE project, A comparative legal study addressing religious or belief discrimination in employment and reasonable accommodations for employees’ religious or philosophical beliefs or practice, RELIGARE policy brief (2012), p.8 (recommending that “Demystify the concept of indirect discrimination using information campaigns and informational resources directed at employers and employees.)
 Waddington, “reasonable accommodation” in Cases (2007), p.670.
 In Belgium a debate on the term “allochtoon” erupted when a leading newspaper, De Morgen, announced it would ban the term from its reporting: Wouter Verschelden, “Waarom wij, De Morgen, ‘allochtoon’ niet meer gebruiken (opinie)” (September 20, 2012), De Morgen, http://www.demorgen.be/dm/nl/2462/Standpunt/article/detail/1503948/2012/09/20/Waarom-wij-De-Morgen-allochtoon-niet-meer-gebruiken.dhtml [Accessed September 21, 2012].
 On a good example of such defensive response by the employer hit by a discrimination claim: Floris Vermeulen, Socio-legal research on accommodation of religious diversity in family and labour law, in public space and state funding of religions in the Netherlands, Dutch sociological report, RELIGARE project, (unpublished, Amsterdam, 2012), p.44 (regarding ETC opinion nr. 2006-215, October 27, 2006 (headscarf/call centre), a commissioner in his interview said: “the employer was extremely offended that he was accused of discriminating against people because he was very conscious about providing people with equal opportunities. … And to add insult to injury, an anti-discrimination agency got involved… Because of all the anger, the people in question weren’t able to think creatively for themselves…)
 Even though the failure to provide accommodations can fall under the definition of discrimination, the term does not necessarily by association acquire a pejorative connotation.
 This pejorative connotation of the term “discrimination” is a reason why the Dutch Equal Treatment Act avoids the term and uses “distinction” (“onderscheid”) instead. However, the European Commission has sent “reasoned opinions” to the Netherlands to correctly transpose amongst others the terminology used in the equality directives into its national law, which has been committed but not happened yet. As an ultimum remedium, the Commission could refer the matter to the ECJ.
 Sonia Ghumman and Linda Jackson “The downside of religious attire: the Muslim headscarf and expectations of obtaining employment” (2010) 31 Journal of Organizational Behavior 4-23.
 Somek, Engineering Equality (2011), p. 185.
 Schiek, “indirect discrimination,” in Cases (2007), p.332-3.
 http://www.bureauduchabbath.org (“l’objectif premier du Bureau du Chabbath est de faire rencontrer les offres et les demandes d’emploi des coreligionnaires désireux de garder le Chabbath et les fêtes juives.” [The primary objective of the Shabbat Office is to connect job offers with requests from fellow Jews eager to keep Shabbat and the Jewish festivals.]
 E.g. Tzadik, “Jewish Women in the Belgian Workplace” in A Test of Faith? Religious Diversity and Accommodation in the European Workplace (2012), pp.225-242 (accounts of various “coping mechanisms”).
 Art.2 EED.
 Bilka-Kaufhaus GmbH v Weber von Hartz (C- 170/84)  E.C.R. 1607.