Conflicts between religion or belief
and other protected groups
Peter Reading
Director of Legal Policy
Equality and Human Rights Commission, Britain
Overview
This presentation will cover :
• An overview of the Equinet Law in Practice Working Group
Report on Religion or Belief
• The areas where conflict arise
• Several key cases involving the Equality Bodies and
principles applied to resolving conflicts
• Some emerging conclusions
Equinet report on religion or belief
The Report will:
-
Outline the legal framework for protection from religious discrimination
and freedom of religion under EU Equality law and article 9 ECHR
-
Outline the ways in which issues of religious discrimination and freedom
of religion are developing across employment, education, provision of
goods and services, public functions such as police, and public spaces
-
Analyze the cases based on two categories:
1. Religious discrimination/ manifestation claims generally
2. Religious discrimination/ manifestation claims where conflicts arise
Equinet report on religion or belief
1. Religious discrimination/ manifestation claims generally
-
Requests for adjustments in employment based on religious practices or
belief (working hours, dress codes)
-
Religious clothing in schools
-
Refusal to provide a service (eg public security issues and Muslim
dress)
2. Religious discrimination/ manifestation claims where conflicts arise
-
Sexual orientation
-
Children
-
Gender
Types of Conflicts: sexual orientation
1. Employment
- Employee refuses to perform a task because of religion or belief which
does or may discriminate against groups on grounds of sexual
orientation
- Genuine occupational requirements exception relating to religion:
Employment Directive 2000/78/EC
2. Provision of goods and services
- Service provider refuses to provide a service on grounds of sexual
orientation
Types of Conflicts: sexual orientation
1. Employment
Position of registrars of marriages and civil partnerships
Ladele v Islington Borough Council Court of Appeal (UK)
Registrar refused to perform civil partnerships for same sex couples on
grounds of religious beliefs
Claim of religious discrimination and breach of article 9 ECHR
Held: was indirect discrimination on grounds of religion but was justified,
no breach of article 9
Factors: public position of registrar, could not perform key part of role,
may result in discrimination against gay people (chilling effect)
Types of Conflicts: sexual orientation
1. Employment
Position of registrars of marriages and civil partnerships
Civil Registrar case Dutch Equal Treatment Opinion 2008-40 (Netherlands)
Man applied to become registrar, position required person to perform
same sex marriages and partnerships. Man said he could not on
grounds of religion and claimed indirect religious discrimination
Held: was indirect discrimination but justified
Factors: was proportionate response, not merely asking for change in way
service provide but complete exemption regarding a group, constitutes
sexual orientation discrimination
Types of Conflicts: sexual orientation
1. Employment
- Genuine occupational requirements exception relating to religion:
Employment Directive 2000/78/EC
Supreme Court Case 247 1 (8 June 2005) (Hungary)
Declaration by Calvinist University that cannot educate and recruit
for employment of pastors and teachers of religion homosexuals
Sexual orientation discrimination claim
Supreme Court held it was proportionate to exclude homosexuals
from theological education
Questionable decision: not likely to comply with Employment
Directive which prevents use of exception to justify discrimination
on other grounds
Types of Conflicts: sexual orientation
2. Provision of services
Hall and Preddy v Bull and Bull (UK)
Bed and Breakfast owned by Christian religious couple, refused to provide
room to homosexual couple as they were not married.
Homosexual couple claimed sexual orientation discrimination. Religious
couple claimed would be a breach of their article 9 rights.
Held: either direct or indirect sexual orientation discrimination, no
breach of article 9
Types of Conflicts: children
Arises in employment, education and service provision
Unlike sexual orientation cases which usually involve discrimination, child
cases usually concern the protection of their best interests and of their
right to education
HALDE decision No 2006-242 (France)
Youth leaders contract was terminated, work involved leisure and
sporting activities for promotion of social integration of autistic
children
Claimant arrived at work wearing a veil and refused to go swimming with
the children.
Was indirect religious discrimination but justified on grounds of need to
ensure safety of children using pools
Types of Conflicts: children
Williams v Secretary of State for Education and Employment [2005] 2 WLR
590
Parents claimed that legislation that prohibited corporal punishment in
schools interfered with their ability to manifest their article 9 right to
freedom of religion.
House of Lords found that the interference with their rights was justified
to protect the rights of children from physical abuse
Types of Conflicts: gender
Arise in situations primarily of employment and education
Refusal to perform task with a woman
Supreme Court KKO:2010:74 (Finland)
Refusal of male priest to hold religious service with female priest on
grounds of religious belief.
Held: was direct sex discrimination. Article 9 can be limited to protect
the rights of others
Types of Conflicts: gender
Refusal to shake hands with persons of opposite sex: CGB 7 November
2006, 2006-221 (Netherlands)
Musilm female teacher stated on religious grounds she no longer wished
to shake hands of men was suspended.
Claim of indirect religious discrimination and breach of article 9.
CGB Held: was legitimate aim of having practice of shaking hands to
promote respectful manners but was not proportionate, are different
ways to be respectful in a diverse school.
Court of Appeal held: was indirect religious discrimination but was
justified. Not shaking hands could be seen as confrontational, straining
relations, weight to be given to having uniform rules
Emerging Conclusions
1. Most conflict cases are determined on the basis of indirect religious
discrimination claims as they generally relate to neutral practices that
have a disproportionate impact on religious groups
2. Actual or potential discrimination or abuse of the human rights of
other protected groups will be key to determining whether there is a
legitimate aim and if so whether its proportionate
3. In sexual orientation conflict cases, claims of sexual orientation
discrimination my also arise and be established
4. The concept of making adjustments for religious belief are unlikely to
be reasonable where they would or may result in discrimination
against other groups
Emerging Conclusions
5. Article 9 claims are generally unlikely to succeed where there are
conflicts as the right to manifest your belief can be limited to protect
the rights of others
6. There is a need for the extension of EU Equality law beyond the
employment sector for religion or belief, sexual orientation, children
7. The Religion or Belief exception in the Employment Directive may be
being inappropriately applied to permit sexual orientation
discrimination and a reference from a Member State may help clarify
8. It may be helpful for Equality Bodies and the European Commission to
produce practical guidance on how to balance conflicting rights.