Religious Discrimination

Equality Law and  Religious Discrimination

The Employment Equality Directive requires EU states to protect citizens against discrimination on the grounds of religion and belief in employment, occupation and vocational training. The inclusion of religion and belief as grounds which are protected, reflects principles of EU law which derive from the  European Convention on Human Rights and the Universal Declaration of Human Rights which protects freedom of religion and belief.

In addition to their obligations under human rights treaties and the directive, many states also have constitutional obligations to protect religious freedom. As well as commitments to maintain religious freedom, many EU states have strong commitments to the Christian church.

The Irish Constitution makes express reference in the preamble to being founded on Christianity. Article 44 provides

  • The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion;
  • Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
  • The State guarantees not to endow any religion.

Religious Ground 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.


Religion Definition

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.

Characteristics of Religion I

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.

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.

Characteristics of Religion II

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.


Belief as an Element

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.


Political Opinion

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

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 Directive may protect against discrimination based on the employer’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

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.

ndirect 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.


Comparators

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, where, for example, an  employer refuses to employ anyone who is religious. 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, an employer refuses to employ 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.


Harassment

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.


Institutions Exemption I

Where the establishment is an institution for the purpose of training of ministers of religion and admits students of only one gender or religious belief, its refusal to admit students other than of that gender or religious belief.

An educational and medical institution, under the direction or control of a body established for religious purposes, whose objectives include the provision of services in an environment promoting religious values, may discriminate against persons on the grounds of religion, if

  • it gives more favourable treatment based on his religion, to an employee or to a prospective employee where it is reasonable to do so, in order to maintain the religious ethos of the school or institution; or
  • it takes action which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the school or institution.

Institutions Exemption II

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.

In this case, action taken to prevent an employee or prospective employee from undermining the religious ethos of the school or institution is deemed to be discrimination unless by reason of the nature of the employment concerned or the context in which it is carried out the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and the means of achieving that aim are appropriate and necessary.


Objectively Justified

Ths action is not objectively justified, unless it is rationally and strictly related to the institution’s religious ethos, a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s, or prospective employee’s, gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community.

Such action must also be proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to

  • any other action the employer may take in the circumstances,
  • the consequences of that action for that employee or prospective employee,
  • the employee’s or prospective employee’s right to privacy, and
  • the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.

Occupational Requirement

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.

References and Sources

Primary References

Religion and Belief Discrimination in Employment – the EU law Lucy Vickers European Network of Legal Experts in the non-discrimination field

Employment Law  Meenan  2014 Ch.12

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch. 13

Employment Law in Ireland Cox & Ryan 2009 Ch 15

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

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts

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

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G        2007

Irish Employment legislation (Looseleaf)       Kerr     1999-

Employment Rights Legislation (IEL offprint) Kerr     2006

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to  2015.