Religious Ground of Discrimination
The Equal Status Act applies the principle of equality to the disposal and provision of goods and services to the public generally. A trader or other service provider may not discriminate between customers or services recipients on certain specified grounds. The grounds include religious belief and race
The Equal Status Act protects against discrimination in relation to
- the provision of goods and services
- access to, or the use of any place;
- facilities for any banking, insurance, loans or financing;
- entertainment, recreation, cultural activities, transport or travel;
- services provided by a club;
- professional or trade services.
Discrimination involves the application of different treatment, practices or rules to comparable situations or, in some cases, the application of the same treatment, practices and rules to different situations.
The legislation prohibits discrimination in respect of characteristics imputed to a person, even if he does actually have those characteristics. This would apply, for example, to a person who is incorrectly perceived to be homosexual. It is not necessary to prove or assert, in this case, that he is in fact, a member of the protected class.
It is unlawful discrimination if a person is treated less favourably because he is associated with a person who falls into one of the protected categories.
Discrimination may be claimed to exist on multiple grounds. In this case, a decision must be made in respect of each claim. Different exceptions apply to the various grounds. In some cases, equality officers recognise multiple compound bases of discrimination.
The religious belief ground refers to differences in treatment between persons of one religious belief compared to another of a different religious belief or of no religious belief. A “religious belief” includes a religious background and outlook. The religious belief ground covers discrimination based on professing particular religious beliefs or the absence of religious beliefs
As with the other protected grounds, a person is discriminated against on the ground of religion, if he is treated less favourably than another is, has been, or would have been treated in a comparable situation on that ground, which exists, existed but no longer exists, may exist or be imputed. It also applies where the person who is associated with another, is treated by virtue of that association, less favourably than another is, has been, or would be treated in a comparable situation on the religious ground.
A difference in treatment based on religion does not constitute discrimination, where by reason of the occupational activities or the context, the religious ground constitutes a genuine and determining occupational requirement. The object must be legitimate, and the requirement must be proportionate.
Neither the EU Directive nor the Irish legislation defines religion. Most of the international human rights documents which protect religious freedom do not define religion. Other jurisdictions with religious discrimination prohibitions have attempted to define religion.
In the US, two main approaches have been developed. The first is a content-based definition, which identifies the core content of beliefs which make them ‘religious’, or sufficiently serious to warrant protection. Requiring a belief in God is too narrow under this approach.
A wider definition is said to refer to a person’s ‘ultimate concern’. This is ‘ultimate’, in the sense that it is absolute, unconditional and unqualified, and give meaning and orientation to the follower’s life. This may include philosophical movements such as humanism or atheism which do not have traditional religious roots.
An alternative approach to defining religion is to define by analogy. A list of criteria can be identified which are neither necessary nor sufficient in themselves to define religion, but which, if they are present in sufficient quantity, can indicate that a belief system is religious, even though another religion may share none of the same criteria. Criteria could may include:
- a belief in God or a supreme being;
- a comprehensive view of the world and human purposes;
- a belief in an after-life;
- communication with ‘God’ via worship and prayer;
- a particular perspective on moral obligations derived from a moral code or from a conception of God’s nature.
The Australian High Court held that no single characteristic is determinative, but that the following criteria were helpful in characterising beliefs as religious:
- a belief that reality extends beyond that which is capable of perception by the senses;
- that the ideas relate to man’s nature and place in the universe and his relation to things supernatural;
- that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance;
- that adherents constitute an identifiable group (even if loosely knit); and
- that adherents themselves see the ideas as religious.
Other Definitions of Religion
Some EU states have definitions of “religion” for other specific purposes, such as tax exemptions. They include
- a structure of convictions whose content is representable and has been growing in history to explain humankind and the world in its transcendent meaning and to accompany them with specific rites, symbols and give them orientation in accordance with basic principles and doctrine;
- any specific certainty as regards the whole of the world and the origin and purpose of mankind which gives sense to human life and the world, and which transcends the world.
Some states define what does not count as a religion including;
- activities, intentions and entities relating to or engaging in the study of and experimentation on psychic or parapsychological phenomena or the dissemination of humanistic or spiritual values or other similar non-religious aims;
- groups with a religious or philosophical vocation which in its organisation or practice, performs illegal and damaging activities, causes a nuisance to individuals or to the community or violates human dignity.
The European Court of Justice has recognised the need for ‘an autonomous and uniform interpretation’ of the Directive throughout the Community with respect to other grounds of discrimination. The courts are likely to be guided by the interpretation of the European Convention on Human Rights, which have recognised Scientology, Druidism, Divine Light Zentrum, and Krishna Consciousness.
The Directive and domestic legislation cover a ‘religion or belief’. It seems that beliefs do not need to be religious in nature to be protected, but that there is still some limit on the types of belief to be covered. This limitation on the scope of protected beliefs is reflected in the ECHR case law. It provides that in order to qualify for protection beliefs do not need to be religious but must ‘attain a certain level of cogency, seriousness, cohesion and importance.
Definitions of belief for equality purposes, include
- a system of interpretation consisting of personal convictions concerning the basic structure, modality and functions of the world; but not a scientific system;
- perceptions of humanity, views of life, and morals;
- a coherent set of ideas about fundamental aspects of human existence; including broad philosophies such as humanism, but not extending to more general views about society.
It appears that that it should cover wide-ranging issues and should not extend to ‘single-issue’ beliefs. However, the ECHR has held beliefs to pacifism and veganism.
Some EU jurisdictions (including Northern Ireland, but not Ireland) have extended protection to political belief as such. Some political beliefs, such as communism, might be argued to be philosophies of life. Others clearly are not. It may be difficult to determine the boundary between beliefs and political beliefs.
Some political beliefs are wholly contrary to the values reflected in the Directive, and it is not at all clear that the Directive was intended to protect against discrimination those with political opinions that do not respect basic human rights, equality and the eradication of racism.
The meaning of religion and belief within the Directive clearly includes atheism and other non-religious viewpoints. It may include the absence of a particular belief. In a Northern Irish case, less favourable treatment of a police constable on the grounds of not being a member of the Masonic Order was held to amount to discrimination on the grounds of religion or belief.
Direct discrimination involves less favourable treatment on the grounds of religion or belief. Direct discrimination may be on the grounds of religion or belief where the treatment is based on a mistaken assumption about a person’s religion and discrimination based on a person’s association with people of a particular religion. The legislation may also protect against discrimination based on the person’s religious views.
There are limited general exceptions to direct discrimination on the ground of religion. They following are permitted
- where a measure is necessary for public security, for the maintenance of public order and for the protection of the rights and freedoms of others;
- where, because of the particular occupational activities or the context in which they are carried out, a religious characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate;
- where the employer is a church or an organisation the ethos of which is based on religion or belief, it can require that members of staff are loyal to that ethos; even it is not a requirement for carrying out the duties of the position; it must not involve discrimination on any other ground.
Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief at a particular disadvantage compared with other persons’ unless it can be justified.
Bans on religious symbols on clothes in educational institutions on the basis of ostensibly neutral policies on uniforms have been held to constitute discrimination on the religious ground in some cases.
Indirect discrimination may be capable of justification where the practice or criteria can be objectively justified by a legitimate aim, and the means of achieving the aim are appropriate and necessary. The requirements must be appropriate to the job. They should prevent the imposition of unnecessary requirements that have a disproportionate impact on those of any particular religion.
It is not clear if having a religiously neutral workplace is necessarily a sufficiently legitimate aim. Economic cost or customer preference does not usually justify indirect sex discrimination. It is arguable that such a high standard of justification is not appropriate in cases of religion and belief discrimination.
Direct and indirect discrimination require comparisons to be made with others. Direct discrimination is defined as less favourable treatment than another ‘in a comparable situation. Indirect discrimination involves disadvantage ‘compared with other persons.
It is not always clear who the comparator should be. Less favourable treatment may be apparent between a religious claimant with a person of no religion. However, it may be that the less favourable treatment only becomes apparent if the claimant is compared with a person of a different religion, where for example, a trader may refuse to deal with a non-Christian.
It may be that a claimant is from one religion and that the less favourable treatment only becomes apparent when the comparison is made with a person of another particular religion, rather than with the comparison with another religion.
Comparisons with the treatment of other religions may become complex. Religious practice may also be cultural in nature. For example, it is arguable that having Sunday off is not a religious accommodation granted only to Christians, is the acceptance of a cultural norm.
The Directive deems harassment to be a form of discrimination. It occurs where there is unwanted conduct related to religion and belief with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
Difficult questions may arise in interpreting religious harassment. “Religion” and “belief” are undefined and it may be far from apparent what the likely effects of certain behaviour on religious people may. Members of the same religion do not necessarily agree on what might cause offence.
Weight might be given to the views of the formal authorities of the religion. However, such an approach might not protect some persons sufficiently in light of their personal religious sensibility. There may be significant disagreement as to whether individuals are or should be justifiably offended. A subjective test limits freedom of speech.
A difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out
- the characteristic constitutes a genuine and determining occupational requirement, and
- the objective is legitimate and the requirement proportionate.
There is an exemption whereby a person may treat persons differently on the ground of religion when disposing of goods and services for a religious purpose. . The difference in treatment is limited to the religious ground (and no other ground). It allows a church to limit access to members of its congregation or faith.
Institutions Exemption I
There is an exemption from the general prohibition on religious based discrimination where it can be justified on the basis that is necessary to maintain the religious ethos of a hospital or of an educational establishment. This also applies to employment in any educational or medical institution under the direction or control of a body established for religious purposes or whose objectives include the provision of a service in an environment which promotes certain religious values.
Educational establishments include preschool, primary, post-primary and higher education institutions, whether or not supported by public funds.
Where an educational or medical institution is maintained, in whole or in part, by monies provided by the Oireachtas more favourable treatment on the religion ground shall be taken to be discrimination unless
- that treatment does not constitute discrimination on any of the other discriminatory grounds, and
- by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos.
Institution Exemption II
Where an establishment provides primary or post-primary education to students, and the objective is to provide education in an environment which promotes certain religious values, it is not unlawful discrimination to admit persons of a particular religious denomination in preference to others, or to refuse to admit as a student, a person who is not of that denomination provided that the refusal is essential to maintain the ethos of the school.
There is an exception in respect of access to, expulsion from and the terms and conditions of participation in an educational institution in respect of the training of ministers of religion.
Certain educational and medical institutions promoted by religious bodies may discriminate on religious grounds, in order to maintain their religious ethos.
There is a general exception in relation to discrimination on the religious grounds for denominational schools. It may afford more favourable treatment on the basis of a person’s religion, provided that such treatment is reasonable in order to protect the religious ethos of the organisation. The exception also applies where the relevant organisation takes action which is reasonably necessary in order to prevent an employee or prospective employee from undermining its religious ethos.
Where a school is established at the primary or post-primary level, and the objective of the school is to provide education in an environment which promotes certain religious values, preference in the admission of persons of a particular religious denomination is permitted. This is on condition that it is essential to maintain the ethos of the school. This exemption is subject to the general right of a child to attend a school maintained out of public funds. Accordingly, it is likely that it must be interpreted strictly and narrowly.
Notwithstanding the apparent exemptions for religious denominations, it is likely that the Constitution would place some limits on the exemption from equality allowed to educational and medical institutions under the direction or control of the religious body. The State guarantees not to endow religion, not to impose disabilities and not to discriminate on the ground of religious belief, profession or status.
The Constitution declares that legislation providing state aid for schools must not discriminate between schools under the management of religious denominations. It may not prejudice the right of any child to attend a school receiving public money, without attending religious education in that school.
References and Sources
Religion and Belief Discrimination in Employment – the EU law Lucy Vickers European Network of Legal Experts in the non-discrimination field
Equality Law in the Work Place Purdy 2015
Equality Law in Ireland Reid 2012
Employment Equality Law Bolger and Bruton 2012
Irish Employment Equality Law McCurtain and O’Higgins 1989
Disability Discrimination Law Smith 2010
Equal Status Acts Discrimination in Goods & Services Walsh 2012
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Equal Status Act 2000
Equality Act 2004 (24/2004), Part 2
Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16
Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26
Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11