Religious discrimination in the workplace
It is unlawful for an employer to prevent employees from exercising their personal religious beliefs, and it is unlawful for employers to obligate employees or pupils to embrace a faith that is not theirs. An employer may not victimise an employee because of his or her faith – constructive dismissal would be unlawful. Any dismissal on the grounds of religion amounts to unfair dismissal, and is automatically unlawful.
All religions are to be regarded as equal before the law! This Constitutional rule was most recently reiterated in 2017, when the South Gauteng High Court ruled in CASE NO: 29847/2014 in favour of the Organisation for Religious Education and Democracy (OGOD), against six public schools accused of promoting a single faith – Christianity – in religious education classes.
Handing down judgment, Judge Willem van der Linde quoted Section 15 of the Constitution.
“15. Freedom of religion, belief and opinion.
(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided institutions, provided that-
(a) those observances follow rules made by the appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.”
Van der Linde J. added “…we have however also found at the level of principle that neither a school governing body nor a public school may lawfully hold out that it subscribes to only a single particular religion to the exclusion of others.”
Van der Linde ruled “In the circumstances, we issue the following order:
(a) It is declared that it offends Section 7 of the Schools Act, 84 of 1996 for a public school –
(i) To promote or allow its staff to promote that it as a public school adheres to only one, or predominantly only one, religion to the exclusion of others; and
(ii) To hold out that it promotes the interests of any one religion in favour of others.”
Although van der Linde’s judgement dealt with religious education in public schools, this case served once again to confirm the first rule of engagement with regard to religion, a rule which has been articulated by the Constitutional Court many times; that all faiths must be treated equally, and that followers of no single religion may discriminate against, or exclude with intent to discriminate against, followers of any other religion!
In the context of a broader society still largely dominated by one faith, Christianity, this confirmation confirms again that employees who hold minority religions must be treated equally, and that members of these religions, whether employee or pupil, must be afforded equal opportunity to practice their faiths, without discrimination.
In paragraphs 23 and 24 of the OGOD judgement, van der Linde clarified the requirement for equity with regard to religion, by quoting O’Regan J. in S v Lawrence , S v Negal ; S v Solberg.
“The requirement of equity in the conception of freedom of religion as expressed in the interim Constitution is a rejection of our history, in which Christianity was given favoured status by government in many areas of life regardless of the wide range of religions observed in our society. Sachs J. in his judgment in this case has provided a valuable account of the ways in which Christian principles were endorsed by legislation and its practices often imposed upon all South Africans regardless of their beliefs (see paras [148]—[152]). The explicit endorsement of one religion over others would not be permitted in our new constitutional order. It would not be permitted, first, because it would result in the indirect coercion that Black J. adverted to in Engel v Vitale; and, secondly, because such public endorsement of one religion over another is in itself a threat to the free exercise of religion, particularly in a society in which there is a wide diversity of religions. Accordingly, it is not sufficient for us to be satisfied in a particular case that there is no direct coercion of religious belief. We will also have to be satisfied that there has been no inequitable or unfair preference of one religion over others. “
In summary:
It is unlawful for an employer to prevent employees from exercising their personal religious beliefs, and it is unlawful for employers to obligate employees or pupils to embrace a faith that is not theirs.
An employer may not victimise an employee because of his or her faith – constructive dismissal would be unlawful. Any dismissal on the grounds of religion amounts to unfair dismissal, and is automatically unlawful.