Duties of reasonable accomodation 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

    Research output: Contribution to journalArticleAcademicpeer-review

    Abstract

    This article aims to answer the question of whether duties of reasonable accomodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, its is emphasized that duties of reasonable accomodation 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 accomodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accomodation 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 accomodation measures) can be solved when an asymmetrical approach to the srutiny of suspect grounts is adopted. Similarly, the apparant conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accomodation measures trigger controversies, this should be countered by awareness raising about the intrinsinc connection of reasonable accomodation measures with substantive equality.
    Original languageEnglish
    Pages (from-to)5-25
    Number of pages21
    JournalErasmus Law Review
    Volume5
    Issue number1
    Publication statusPublished - 2012

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