Conscience Rights in the Workplace
Conscience Rights in the Workplace
- Lakshay Singh Rawat
What is Conscience?
The first question that arises is that what Conscience is; At the same time, there are many definitions of Conscience, I have used the one found in the (Illinois) Health Care Right of Conscience Act because it was the first of its kind and has been cited as model legislation in the conscience field: "Conscience means a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its holder" (Health Care Right of Conscience Act, n. d.). Conscience isn\'t only a collection of one\'s thoughts or opinions. In most legal definitions, Conscience is broadly defined to include moral, ethical, or religious beliefs. Indeed, some authors believe that the distinction between religion and Conscience is a "distinction without a difference"). In contrast, others believe that "the framers viewed \'free exercise of religion\' and \'freedom of conscience\' as virtually interchangeable concepts."
Conscience rights in the workplace
Employees are increasingly arguing that they should have an absolute legal right to decline employment activities that go against their ethical, moral, personal, or religious views or beliefs—in other words, their Conscience. This assumption has become one of the more contentious topics that companies must deal with.
Employees also refuse to observe private employer policies, follow managers\' directions, or execute routine job responsibilities because of their convictions. For example, they have refused to serve LGBT clients, fill morning-after pill prescriptions, sing "Happy Birthday" to restaurant patrons, and even work on "too violent" videogame software. Such refusals are sometimes founded on explicitly religious beliefs and other times on stated views about the policies/instructions/tasks\' "rightness" or "morality." Because private companies are increasingly being compelled to deal with "conscientious objectors" in the workplace, this warning examines the most usually applicable federal statute as well as employers\' legal obligations under it. It also considers a variety of practical solutions for coping with “conscience issues” at work.
People today talk a lot about following their Conscience. Conscience is more than just a set of choices and preferences. It\'s all about one\'s morals, spiritual perspective, and gut instinct for good and wrong. Few employees are willing to compromise their innermost moral convictions for the sake of their jobs. These beliefs are frequently based on religious convictions, but they are formally unrelated to religion. What safeguards are in place at work to preserve one\'s Conscience?
Conscience rights in the workplace in India
In India, Article 25 of the Indian Constitution provides the required rights.
Article 25 in The Constitution of India 1949
25. Freedom of Conscience and free profession, practice, and propagation of religion
(1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of Conscience and the right freely to profess, practice and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly
Not a Regulatory Human Right, but Constitutional Freedom
Following one\'s Conscience is fundamental freedom on par with equality and free speech. That means that government employers at all levels must respect the consciences of their employees.
The majority of people, however, do not work for the government. They operate in the private sector, which is subject to provincial and territorial regulations. At this level of human rights legislation, businesses are not required to protect their employees\' religious liberties. Even in the private sector, there is some intrinsic conscience protection. If a worker is requested to do anything illegal or unreasonably risky, for example, the worker has the right to reject and is protected by both regulation and common law. When confronted with a legal challenge, no employer will be able to get away with penalizing employees under such circumstances.
So, what should we do about this matter of Conscience?
Accommodation is the proper attitude. The following is an example of reasonable accommodation: A civil or religious wedding, or both, is an option for a couple. Both types are perfectly legal. Everyone is accommodated, and no religious or secular wedding officiant is obliged to act in a manner that is inconsistent with their beliefs. In all vocations, the same level of consciousness and equality can be simply accomplished.
How to manage Conscience in the workplace?
In order to effectively manage conscientious refusals in their own workplaces, employers must be aware of this continuous challenge. The following are four crucial pointers for employers dealing with workplace conscientious refusals:
1)There is a distinction to be made between refusing to give a service at all and refusing to provide a service to a subset of the population. For example, healthcare providers typically have the freedom to deny abortions based on their religious beliefs. Healthcare practitioners, on the other hand, cannot refuse to treat a patient because of his or her race, gender, or another legally protected category for religious or other reasons. The first is a moral refusal, while the second is discrimination.
2)Allowing an employee\'s conscientious reluctance to be accommodated may be an unnecessary hardship. Employers sometimes believe that they must always accommodate religiously driven conscientious refusals because not doing so would be religious discrimination. In actuality, there may be times when an employee\'s religious beliefs or practices cannot be accommodated in the workplace because doing so would put the employer under undue strain.
3)Undue hardship is based on a number of factors, including whether the service the employee refuses to deliver is a significant part of the person\'s job responsibilities. A nurse who works for a clinic that mainly or predominantly performs abortion services has a broader right to refuse to help with an abortion if requested once under unique circumstances. The first nurse will most likely be easier to accommodate and will need less effort than the second nurse.
4)Employers should collaborate with employees to find solutions that respect an employee\'s Conscience while allowing others to exercise their legal rights. Employers are not forced to bear the brunt of all conscientious refusals. Employers should make a good faith attempt to accommodate religious views and practices in the workplace by working with their employees.
5)Employers should adopt the "Accommodation Mindset" and approach accommodations with the mindset of "how can I accommodate?" rather than selecting which beliefs and practices should be accommodated. Employers should also be innovative in their approaches to possible accommodations and endeavor to establish an environment where employees feel comfortable expressing their accommodation needs. Finally, employers must ensure that accommodations are compliant with all applicable laws and standards.
Conclusion
We would never deny somebody equality because it would offend someone else\'s Conscience. Similarly, in order to achieve equality, we should not undermine one\'s Conscience. Around the world, conscientious objection has long been recognized. Our constitutional conscience rights, on the other hand, are far too often surrendered. Still, much progress is to be made in the Indian constitution about the Conscience in the workplace. The balance of interests’ method, which necessitates a proportionality decision, is, in my opinion, far more just. Of course, the ideal situation would be for legislation to accommodate religious and moral duties. However, if it does not, or does so insufficiently, the courts must be given the authority to redress such a shortfall in the basic right protection. The accommodation of freedom of Conscience in contemporary societies is more important than ever, not only because we are expected to actively seek the maximum degree of protection of fundamental rights, but also because we live in increasingly religious and ideological pluralistic social communities. What is at stake is a fundamental right that is essential for free and equitable society freedom of Conscience is a vital public interest whose protection, or lack thereof, would have ramifications throughout the entire social dynamics. All laws have an ethical basis, which is more or less explicit and are usually based on the majority ideals in society.
References :-
1. CONSCIENCE RIGHTS IN THE WORKPLACE Advocatespedia, ASSN:148871 https://advocatespedia.com/CONSCIENCE_RIGHTS_IN_THE_WORKPLACE accessed 21 July 2021
2. Adjusting general legal rules to freedom of Conscience: the Spanish approach [2019] p. 131-151
3. Holland & Knight LLP, ‘Matters of conscience in the workplace’ (Lexicology)
https://www.lexology.com/library/detail.aspx?g=78391d4e-af30-4604-b15c-2c02e6d52b53 accessed 21 July 2021
