Saturday, 20 August 2011

Allowing religion as an excuse for discrimination: consultation response

Spark in Darkness highlights an Equality and Human Rights Commission consulation (Word document) on its intervention in a number of religious discrimination cases.

As pointed out by Sparky, the consultation wording is pretty bad, and seriously downplays the discriminatory nature of the inactions that two of the plaintiffs were rightly barred from. The consultation also makes it quite difficult to find the details of the cases - they give you a link about six steps out in the convoluted court website, and then approximately describe the first two steps needed to find them (one of which no longer works as described). As linked below, there are perfectly good1 direct links to the case descriptions!

The cases in question are:

  • The two cases Eweida and Chaplin, in which the plaintiffs were forbidden from wearing particular visible Christian symbols as part of their work uniform.
  • The two cases Ladele and McFarlane, in which the plaintiffs hold that requiring them to carry out all aspects of their jobs with all clients was discriminatory, since heterosexist discrimination is part of their religion.

In all four cases, the UK courts have decided that the plaintiffs were not subject to unfair discrimination.

Currently the EHRC's position is that the UK courts were wrong in the first two cases, and correct in the last two. They also ask if a concept of "reasonable accommodation" should be applied to religious discrimination.

It is crucial, of course - to prevent religious exemptions and "conscience clauses" from making equality laws useless - that the European courts uphold the decisions against Ladele and McFarlane. It's also therefore important that the EHRC does not ask those courts to rule in favour of Ladele and McFarlane. Please send a response to their consultation if you have time (contact details on the final page of the consultation document, deadline 5 September.

Here's my response:

Regarding your consultation on intervention in four religious discrimination cases before the European courts:

Response to question 1:

In the case of Eweida, I believe that the courts probably made the correct decision based on current law, given that "In the interim, British Airways had offered to move the applicant without loss of pay to work involving no public contact, but the applicant had chosen to reject this offer and instead to stay away from work and claim her pay as compensation.".

Whether or not this decision was correct would depend in my view on whether the alternative work offered was at a similar standard - not just in pay but in working conditions, opportunities for promotion and skills development, fit with the plaintiff's skillset, and so on - to the original work. If it was - and the UK courts appear to have found that it was - I can see no reason for BA to make payments based on the plaintiff not taking up this offer.

In the case of Chaplin, I believe that the court's response was also correct. The hospital's uniform policy was designed to minimise risk of infection and preserve health, and so requiring employees to follow it should be considered a legitimate restriction "necessary in a democratic society in the interests of public safety, [and] the protection of [...] health".

Response to question 2:

In both of these cases I believe that the domestic courts made the correct decision. Both plaintiffs were required to carry out particular tasks as part of their jobs, without discrimination based on the sexuality of their clients. This is not a case where the religious discrimination claimed is largely unrelated to the performance of their jobs, but one where their religion is definitionally incompatible in their view with the duties of their job. In this case, there should be no responsibility upon the employer to vary the duties, especially where such variance would require discrimination against other protected groups. Protection against religious discrimination should not extend to being able to pick and choose which aspects of ones job should be carried out.

Response to question 3:

A "reasonable accommodation" test for religious discrimination would seem - on the basis of the four cases presented - to be superfluous with current law.

In Eweida, the employer attempted to make reasonable accommodations - firstly by offering a job in which the contested restriction would not apply, and secondly by amending the contested restriction. This was found under current law to be sufficient, and so an explicit "reasonable accommodations" law would have been unlikely to make a difference to the outcome.

In Chaplin, Ladele, and McFarlane, the cases fall outside the scope of "reasonable accommodation". The actions requested by the plaintiffs were incompatible with the duties of the job, and so no "reasonable accommodation" could have been made. Furthermore, in the cases of Ladele and McFarlane, no accommodation of the plaintiff's stance could have been provided without harming the employers' provision of service towards LGB people. Again, a "reasonable accommodations" law would have been unlikely to have made a difference. (Had, in Chaplin, a way of displaying the crucifix been available that was compatible with infection control and health and safety requirements, it seems unlikely that neither the employee nor the employer would not have suggested this at some point in the dispute)

The "reasonable adjustments" part of disability law is in my view to reflect that the infrastructure of society is generally set up by default in a way that is not accessible to people with disabilities, and so it may not be possible - especially for a small business or organisation with a very limited budget - to provide a fully accessible environment. There is therefore only a requirement to do what is financially and physically possible unilaterally, rather than requiring a multilateral rebuild of social and physical infrastructure to truly eliminate environmental disability discrimination.

There is not an analogous situation with religion - no buildings need be completely rebuilt, no tools need to be completely redesigned, and so on - and therefore the concept of "reasonable adjustments" seems unnecessary.


1 Well, in so far as the court website itself isn't particularly accessible or user-friendly.