ROUNDTABLE ON RELIGIOUS DISCRIMINATION RAPT CENTRE 26 FEBRUARY 2016, UNIVERSITY COLLEGE LONDON The event will take place in SPP Council Room, 29/30 Tavistock Square. 14:00 Panel I Chair: Cécile Laborde (UCL) The EHRC's evaluation of the religion or belief legal framework David Perfect, Equality and Human Rights Commission Religious Discrimination and Freedom of Religion: two sides of the same coin, or rights in conflict? Lucy Vickers, Oxford Brookes University Religious Exemptions and Secularity Iain McLean & Scot Peterson, University of Oxford 15:30 Coffee break 16:00 Panel II Chair: Myriam Hunter-­‐Henin (UCL) When non-­‐discrimination law struggles with the “conscience” of companies Emmanuelle Bribosia & Isabelle Rorive, Université Libre de Bruxelles How Can an Egalitarian and Individualistic Conception of Freedom of Religion or Belief Co-­‐Exist with the Notion of Indirect Discrimination? Ronan McCrea, UCL Q&A The event will be followed by a drinks reception. All are welcome. David Perfect (Equality and Human Rights Commission)
The EHRC's evaluation of the religion or belief legal framework
The Equality and Human Rights Commission (EHRC) is carrying out a three-year programme of work to
implement its religion or belief strategy, "Shared Understandings". One element of this involves assessing the
existing legal framework on religion or belief in Britain and examining whether the law offers sufficient
protection for those with a religious or other belief. We commissioned Peter Edge and Lucy Vickers of Oxford
Brookes University to carry out a review of equality and human rights law relating to religion or belief, which
we published last year. We are now preparing a report setting out the EHRC's own conclusions on the
effectiveness of the current legal framework on religion or belief. This report will be published later this year.
I will begin my presentation by placing the report within the broader context of the EHRC's religion or belief
work, before outlining the topics that the report is covering. Since it is too early in the process to outline our
recommendations, I will indicate some of the key issues we are examining in the report in order to stimulate
further discussion.
Lucy Vickers (Oxford Brookes University)
Religious Discrimination and Freedom of Religion: two sides of the same coin, or rights in
conflict?
This paper will consider the relationship between freedom of religion and belief on the one hand, and equality on
grounds of religion and belief on the other. Human rights and equality rights can be seen to be founded on the
same moral first principles, and it might be said that they are two sides of the same coin. Equality is understood
as a fundamental human right, and it is recognised that human rights should be enjoyed equally by all. However,
whilst complementary in many respects, the relationship between the two frameworks for understanding
religious interests can be one of tension.
The paper will start with the positive influence human rights thinking can have for our understanding of equality
law; and, equally, the positive influence on human rights that can be brought from our thinking about equality. It
will then move on to consider some of the conflicts and tensions that can arise when the two concepts are used in
the context of religion and belief. In particular, the use of the margin of appreciation in human rights cases can
be seen as a threat if it were to infiltrate into equality thinking. In addition the paper considers the role of choice
in our thinking about the value of religious interests, the role of the ‘specific situation rule’ in each framework,
as well as the value of communal or group religious interests. The paper suggests that courts need to be mindful
of the difficulties that can arise if concepts such as the margin of appreciation or the specific situation rule are
transplanted directly into the equality context.
Thus, the paper suggests courts need to be alert not only to the positive aspects of cross fertilisation of ideas
between human rights and equality frames but also of the potential dangers of slippage between them.
Emmanuelle Bribosia & Isabelle Rorive
When non-discrimination law struggles with the “conscience” of companies
In liberal democracies, controversies related to freedom of religion, come not so much from the will of the state
to promote any particular religion, but from rules adopted by the state, which interfere with the practice of
believers although they do not concern the religious sphere in the first place. Exemption, accommodation or
derogatory status, all claimed in the name of religious convictions, are at the core of vivid debates.
These exceptions adopted to promote freedom of religion can generate conflicts with other fundamental rights,
among which the principle of equality and non-discrimination features prominently. In some cases, the legislator
establishes guidelines to enable first line actors or the judge to solve or to decide these conflicts. An extensively
discussed example in EU law is the exception to the prohibition of direct discrimination based on religion or
belief enshrined in Article 4, § 2 of the directive 2000/78/EC. Churches and “other public or private
organizations the ethos of which is based on religion or belief” (in short, “ethos-based organizations”) are
allowed, under certain conditions, to treat someone differently because of her religious beliefs (refusal to hire,
dismissal, etc.). This provision has its counterpart in US and Canadian law. It aims to favour religious freedom
when it conflicts with the right to equality.
In recent years, on both sides of the Atlantic, litigation of a different nature is taking place. Profit companies, and
not merely churches or religious organizations, are claiming the benefit of exemptions based on religious
freedom. In the name of their “conscience”, and through the voice of their leaders, these companies refuse to
comply with the obligation to subscribe to group insurance contracts paying the “morning after pill” or to
provide services to people because of their sexual orientation. These cases, which disclose an enlarged notion of
"conscience" or ethos, lead to (re) think the foundations of the right to equality and non-discrimination to avoid
its unravelling or instrumentalization.
At the same time, other companies or associations include the respect of neutrality in their brand. In this line,
neutrality justifies the dismissal or the refusal to hire workers wearing the hijab, or the prohibition addressed to
their staff to wear a visible Christian cross on a necklace. If such a trend is slightly different from the first one,
both obey a similar logic. Indeed, in both cases the companies raise a form of “conscience” broadly understood,
so that the rights of the company prevail over the rights in the company. In this scenario, the convictions of the
employer might overcome the rights of the employees.
In our paper, we intend to consider emblematic cases decided on both sides of the Atlantic to assess how antidiscrimination law is shaken and questioned when companies raise their “conscience”. National and supranational legal cases are providing an insight of what is happening on the ground. They are indicative of some
salient European legal battles, which are taking a global turn in a climate of “conscience wars”. Our approach is
based on the assumption that the traditional segregated approach, studying different courts and legal orders in
isolation from one another, no longer provide adequate conceptual and normative tools to fully grasp the current
evolutions and challenges in this domain. There is a genuine need for a global approach to anti-discrimination
law in which comparative law plays a central role.
Iain McLean & Scot Peterson
Religious Exemptions and Secularity
Religious exemptions presuppose that there are two sides: a believer and a general rule, from which the believer
is exempt. General legal principles allow broad discretion to courts, to determine whether an exemption is
justified in particular factual circumstances; narrower legal principles may protect specific conduct or even
particular religious organizations. We examine a sample of recent judicial rulings in light of these approaches
and conclude that judges are well suited to develop and apply rules to individual cases but that they do so most
effectively on secular grounds.
Ronan McCrea
How Can an Egalitarian and Individualistic Conception of Freedom of Religion or Belief CoExist with the Notion of Indirect Discrimination?
This paper addresses the tension between egalitarian and individualistic approaches to freedom of religion and
the prohibition of indirect discrimination on grounds of religion or belief. Liberal theorists and the case law of
the European Court of Human Rights emphasise the importance of giving individuals an equal measure of
autonomy in matters of religion and belief, whether or not their beliefs are religious in nature or are widely
shared. Indirect discrimination on grounds of religion or belief, on the other hand, focuses on particular
disadvantage faced by individuals who are part of groups that face particular “headwinds” in society an approach
that aims at giving additional protection to individuals with particular religious identities.
This paper addresses this tension by looking at three sets of pan-European legal rights: the guarantee of freedom
of thought conscience and religion in Article 9 of the European Convention on Human Rights (‘ECHR’), the
guarantee of non-discrimination in relation to that right contained in Article 14 ECHR and the prohibition of
indirect discrimination on grounds of religion or belief contained in EU law in Directive 2000/78.
The paper argues that an individualistic approach to freedom of religion and belief and a collective approach to
indirect discrimination in relation to religion or belief, can coexist but that this requires us to be clear about the
differences between them. This means that indirect discrimination in relation to the (necessarily
individualistically viewed) Article 9 ECHR will have to be seen as a distinct, individualistic, form of indirect
discrimination which differs from the collectively oriented form of indirect discrimination covered by Directive
2000/78. In other words, indirect discrimination in relation to freedom of religion or belief must be seen as
different from indirect discrimination in relation to religion or belief and the former, individualised form of
indirect discrimination is unlikely to provide significant additional protection to that provided by religious
liberty claims made under Article 9 on its own. The paper closes by highlighting how the tensions between
freedom of religion and belief and restrictions of measures that indirectly discriminate on grounds of religion or
belief feed into fundamental debates about the relationship between religion, the law and the state in liberal
societies.