Abstract

http://ssrn.com/abstract=2176113
 


 



Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality


Kristin Henrard


Erasmus School of Law

November 15, 2012

Erasmus Law Review, Vol. 5, No. 1, 2012

Abstract:     
This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality.

Number of Pages in PDF File: 20

Keywords: duties of reasonable accommodation, the prohibition of discrimination, asymmetrical approach to levels of scrutiny, freedom of religion, inclusive state neutrality, substantive equality, effective participation

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Date posted: November 16, 2012  

Suggested Citation

Henrard, Kristin, Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality (November 15, 2012). Erasmus Law Review, Vol. 5, No. 1, 2012. Available at SSRN: http://ssrn.com/abstract=2176113

Contact Information

Kristin A. M. Henrard (Contact Author)
Erasmus School of Law ( email )
Burgemeester Oudlaan 100
Rotterdam, 3000 DR
Netherlands
0031104081806 (Phone)
HOME PAGE: http://www.frg.eur.nl/english/
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