Friday, 7 September 2012
reports on European Court hearing of religious discrimination cases
Gavin Drake reports today for the Church Times Lawyer: No discrimination if employees can resign
CHRISTIANS cannot claim that they have suffered religious discrimination at work if they have the freedom to resign and look for another job, a British-government lawyer told the European Court of Human Rights this week.
James Eadie QC made his comments as he outlined the Government’s position in four cases: those of Nadia Eweida and Shirley Chaplin, who claim that they lost their jobs with British Airways (BA) and the Royal Devon and Exeter NHS Trust respectively, over their refusal to remove a cross or crucifix; Lillian Ladele, a registrar with the London Borough of Islington, who objected to being required to perform civil-partnership ceremonies; and Gary McFarlane, who was dismissed from his position as a counsellor with the Avon branch of Relate, after his supervisors said that his religious beliefs would prevent him offering psychosexual counselling to same-sex couples (News, 31 August)…
Mail Steve Doughty Christians ‘must choose between job or their faith’: Government lawyers claim at European court
Telegraph Bruno Waterfield Christians should ‘leave their beliefs at home or get another job’
Independent Terri Judd Christians fight for rights at work in European court
Christian Institute Govt lawyer: Christians should leave faith at home or resign (includes video link to Dinah Rose QC speaking on behalf of Ms Ladele)
An official video recording of the entire proceedings can be found here.
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Friday, 7 September 2012 at 8:31am BST
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"CHRISTIANS cannot claim that they have suffered religious discrimination at work if they have the freedom to resign and look for another job, a British-government lawyer told the European Court of Human Rights this week."
Although I don't think the Christians people in question have a case, this statement is appalling!
That's like saying that gay people aren't being discriminated against in the church because they are free to leave and join another denomination!
The question is not whether other organisation would discriminate less or be more accommodating, but whether the particular organisation has carefully followed the laws of the land!
Exactly so, Erika. It's the phrase 'leave their faith at home' that is the most chilling thing I think I've ever heard cited from a UK government official.
I'm trying to find whether that's a direct quote or a headline summary ..
"(Gays) are free to leave and join another denomination!"
Well, actually Erica a senior English bishop once said this to me, and I don't think I am alone in being the recipient of this kind of advice.
I hear it said too about those who are not in favour of female ordination .......
In fact, it comes up rather a lot as I think about it!
I agree that it comes up rather a lot!
But I might have said once or twice that I don't agree with the church's stand on these isues and it's ridiculous logic for avoiding treating all people equal.
The same argument gets no better if it is used by the government.
If the cases before the ECHR are to be defeated (and I hope they will be), they have to be defeated on better grounds than this!
As one may expect the reporting is a little exaggerated. It is not about discrimination - that is already outlawed. It is about the boundaries to the manifestation of religious belief in a workplace setting where the starting point is the existing ECHR framework that member states have a margin of appreciation on such matters that makes it more likely these cases will be turned down. If Parliament wants to pass a law saying there is an absolute right to religious symbols it can do so. Having that as part of ECHR jurisprudence would create havoc in some countries.
It is bizarre that a government official would claim discrimination can't exist if other employment is available. Would companies be permitted to fire Blacks if other companies would hire them?
It's also very strange to have the State making up the minds of believers as to the requirements of a given religion. Even the claim that wearing the cross isn't a requirement for a given Christian because it's not a scriptural commandment or teaching assumes that Christianity is monolithic in its allegiance to the Bible as the only source of authority and that the ability to interpret the Bible for one's self is not held by any Christian group - both false statements.
I still think persecution is an awfully strong word to be using, but the State's use of this sort of reasoning is very ominous, and tends to support the argument that there is a hostile attitude towards Christians - or religion in general - in important parts of British society.
The state should be using this language in defending its case because that is the key point in the ECHR case law. I.e. that in employment specifically the manifestation of religious belief can be curtailed for example the Ladele case without infringing on religious freedom protected under the Convention (and that is all that's being decided here - is Britain breaching the Convention?) largely because the employment relationship is freely entered into and could be changed for a different employer if one wanted to. That is to say one isn't being obliged to work for your current employer by the State.
As for the State making decisions about what symbols are required by a given religion I would argue it has no choice because cases are being brought before courts and so judgments need to be made in order to hear the cases being brought, unless they are simply won automatically on the say so of given believers.
As a gay person, I would not wish to wake up in say, intensive care and find myself being treated by someone, who insensitively paraded their Christian religion at me. Nor would my Jewish or Muslim friends appreciate such an encounter with the crucifix.
Much of the comment here is misguided.
Don't change job then -stay ! But do not expect to defy your code of practice, your ethics, the culture of your institution, - or undermine them and your line-manager.
That is not Godly.
I was thinking about the Blacks issue too but thought it probably didn't fit the criteria. The employers in question did not refuse to hire Christians because they are Christians and they bent over backwards to give them suitable employment or suitable options for visibly displaying their Christian symbols while at the same time ensuring that the service they provide to their customers is not compromised and that colleagues don't have to pick up too many pieces.
If there is any hostility at all it is to too much special pleading and too unreasonable demands in the name of religion.
I refuse to wear a cross on my lapel but I will sue you for religions discrimination if you don't let me wear it on a necklace doesn't seem to be reasonable at all, and the only mystery is how this case ever came to be heard in a court at all.
If these reports are really representative of what Mr. Eadie said, then they reveal a truly disgraceful attitude towards working people.
Perhaps more interestingly, they also seem to miss a key point of law - because if employees suffering religious oppression in the workplace did resign, that would surely be the very definition of "constructive dismissal".
(That's not a comment on whether any or all of the four applicants in the present case actually _did_ suffer religious oppression in the workplace. I have an opinion on that matter, of course, but since I've seen only the subset of the evidence that's made it into the press reports, it's probably best if I keep that opinion to myself.)
Craig, there are other ways to determine the issues involved than putting all religions and all varieties of a given religion into a "scriptural" straitjacket.
Erika, I thought that the Black example didn't fit after making the comment. One of the articles mentioned observant Jews, though, and I think that probably fits. As for the lapel pin, that case does seem odd, but it's not the only case.
Fr Ron, I must say that saying someone wearing a crucifix is "insensitively parading their Christianity at me" sounds not only jarring (Even letting on that one is a Christian is now regarded as insensitive?) but somewhat self-centered. Why would a general expression of faith be interpreted as being directed at you specifically? Would a Sikh wearing a turban be parading his Sikhism at you?
It's also a little odd to see self-identified liberals and progressives defending the "rights" of employers to micromanage the self-expression of employees. This is not only a religious issue but a free speech issue. The sort of control over employees' behavior being supported here simply seems over the top.
If I woke up in intensive care, I'd first be thankful that the staff had used their combined skill to help me survive.
The fact that person wore a crucifix, a kippah, a turban, or a tattoo in homage to Led Zeppelin really wouldn't matter as much as their ability to deliver outstanding medical attention.
The code of practice, ethics and culture of a medical institution should be aimed at ensuring the individuals involved in the delivery of healthcare do so impeccably, rather than removing their individuality.
I think we need to be careful here. While we are turning this into a conversation about ethics and while to Americans it might even primarily be an issue of free speech, what the court is actually looking at is whether the employers in question have applied all the respective laws appropriately.
And as far as we understand the laws of this country, employers do indeed have the right to impose conditions on their staff, especially where health and safety is concerned, or where everyone working for the public is required to provide the same service to all clients regardless of his personal preference.
Yes, allowances have to be made for reasons of religion but what is being discussed here is precisely whether the right allowances have been made or not.
Once again I find myself agreeing with David Shepherd. I do not feel threatened by displays of religious allegiance, although I do feel threatened by some individuals belonging to the respective religions.
I would no longer wear a cross but I used to and I used to find it a helpful means of identifying other likeminded people. People who would not be embarrassed if, in difficult situations, I would speak of God and of prayer. People who would not ridicule me if I talked of praying for a situation. Especially in hospital that can be very comforting.
I think many of us here have been bruised by the anti gay sentiments coming from a smallish but loud number of Christians. Most are not like that and it would be really sad if a harmless expression of faith became a universal symbol to strike fear into people's hearts.
Bill - in assessing if something is a requirement of a faith in a court process courts are going to have to have evidence before them. I don't believe a scripture is the only place to look but in a religion that has scriptures it is a good starting place. Failing that I would be looking for some evidence such as a longstanding tradition and a degree of universality (at least within a subgroup) and evidence of authoritative teaching within that particular group. I don't actually see any of that for cross wearing. The court just needs evidence to differentiate between a requirement (which one is more inclined to accommodate though even that may have limits) and a personal preference which accrues less stringent protection.
In both the BA and NHS case there actually has been quite a lot of accommodation - there were various alternatives put forward and BA changed its policy after reviewing it.
Erika, I'm not questioning the fact that British law gives employers the right to impose conditions on employees. American law does as well. I was specifically pointing out the incongruous (to me) position of progressives taking the attitude that these rights are, well, *right.* It's one of the few cases I can recall of progressives demanding the rules be scrupulously followed, rather than examining the justice of the rules. Employers used to have the right to demand that people work much longer hours under much worse conditions for inadequate wages, but progressives did not adopt the attitude that, "Well, those are the rules and the rules must be enforced."
I hope progressives would always accept that existing laws should be enforced and that they would then campaign to have those rules changed. Yes, there is civil disobedience but that’s a big thing and should not be undertaken lightly.
But I agree that just because something is legally right it is not necessarily morally right.
In these cases, though, I agree with the moral aspect too. If you are employed to provide a public service you cannot choose who you will serve.
And while you might have a right to wear a cross you do not have the right to decide how to wear it, especially not where there are safety issues.
I can't see how that can be controversial at all.
An employer saying that you can wear a small pin that does not dangle, anywhere on your uniform, and that the one and only thing you cannot do is to wear a dangly necklace, is not micro-managing your self expression. And it's not just you, no-one else is allowed to wear a dangly necklace either.
It’s no different from doctors not being allowed to wear dangly ties.
Can I ask – would these stipulations be seen as unacceptably restrictive in the US? You do very often place a far greater emphasis on free speech and your definition of what comes under the heading of free speech seems to me to go way beyond what we would find acceptable in Europe.
Is our different view here partly due to a different cultural way of assessing these issues?
It would be interesting to see how commenters would address the cases, if they were focused on the right to manifest one's culture, rather than religion.
For instance, would we demand the higher proof that a banned cultural artefact was endorsed in writing as a part of traditional attire? Would any of us describe any non-native wearing such clothing as parading their national identity. No, the rhetoric would change to 'celebrating diversity'.
I suspect that our tolerance of turbans, kippahs and burkas has more to do with the belief that to do so nurtures cultural diversity, than our respect for the mandates of those religious faiths that prescribe them.
Christian symbols can be interpreted as artefacts of a shameful bygone era of cultural imperialism. Colonisers did exploit the faith's historically privileged status in this country.
No wonder then that those who bear those symbols are often viewed as out of touch and also considered to be parading them with insensitivity towards others. The symbol now carries the unfortunate legacy of that former era during which Christianity was imposed.
"I hope progressives would always accept that existing laws should be enforced and that they would then campaign to have those rules changed."
Really? My home state had laws against sodomy. Before they were declared unconstitutional in 2003, I was unaware of any progressive desire to see them enforced.
"In these cases, though, I agree with the moral aspect too."
And yet you give reasons for supporting every case *except* the BA employee and her small pendant. What's the moral aspect in effacing the religious identity of BA employees? How would her wearing a small cross around her neck have negatively affected the airline's business?
As far as how this would play in the States, the Civil Rights Act of 1964 says businesses must make reasonable accommodation of an employee's religious requirements unless to do so would place "undue hardship on the conduct of the employer's business." Cases have arisen regarding crosses, and except for people in some sort of government uniform, the law seems to have been viewed as allowing employees to wear things like cross pendants. Religious accommodation is also mandated in the statutes of various states.
In the case of the NHS nurse, I believe that an American court would say that her employers offered her a reasonable accommodation which she declined. In the case of the BA employee, I think that the same court would say that wearing a small cross pendant did not present the employer with an undue hardship, and must be allowed. I am not sure about the other cases.
However, I would like to say that the counselor who did not want to provide sex therapy to gay couples (but who was okay with doing other types of therapy not involving sex with them) has my sympathies. Not that I think that he's right in his views about homosexuality, but why on earth would you want someone doing sex therapy with you if they were not completely supportive and comfortable doing it? Iit seems to me that Relate viewed him as something like a psychology-providing machine: salary in, therapy out. But people aren't machines, and psychological counseling is a pretty complex thing. Just as it might be unreasonable to insist that someone with acrophobia be the one on the custodial staff who changes lightbulbs in overhead fixtures, it might be unreasonable to insist that someone who viewed homosexual acts as forbidden from giving advice about them. Were there really that high of a number of sexually dysfunctional gay couples in Avon that they could not have been routed to another counselor without unduly affecting Relate? Why was it necessary to push this guy out?
your example of not tolerating sodomy laws strikes me as a good case for civil disobedience.
Not being allowed to wear a necklace in a hospital isn't.
The BA case is interesting, because they actually changed their policy afterwards, which strikes me as a successful outcome.
But as a patient I would not want the NHS to change its policy about dangly necklaces. To give you just one example, when you have a small child with an immune deficiency on a ward and a paediatric nurse bends over him and he grabs her necklace, he can easily contract an infection that could have major consequences, because she is not likely to have wiped her necklace with steriliser between each patient. As a parent who had a child with severe immunity problems during treatment, and where catching something that would be completely harmless to healthy people meant an extended stay in hospital on an antibiotic drip, I really do object to the idea that someone is so arrogant that they believe they must wear a necklace rather than a safe pin that cannot be grabbed.
I completely agree about the sex therapist.
Nor have I ever wanted to be blessed by someone who doesn't want to bless me, or stay in someone's B&B when they don't want me, or have a photographer at my wedding who doesn't want to be there.
But that's between me and the respective person.
It cannot be a legal right to decide which kind of people you might object to for whatever reason.
I keep thinking about what you are saying about the sex therapist. And I have two particular problems with your line of argument, although I have a lot of sympathy for your view.
One is that we're not talking about any possible reason for not doing any possible job but that some people are claiming an opt out purely for religious reasons.
The general principle is that if you are arachnophobia you don’t work with spiders in a zoo and if you can’t cope with heights you don’t work on a high rise building site. There’s nothing wrong with not being able to offer same sex sex counselling, but then you shouldn’t be a sex therapist. To claim religious reasons for your particular problem, especially when it’s nothing more than prejudice, is simply morally wrong.
The other thing that really worries me is that we are so conditioned to think that it’s somehow acceptable to have an aversion to gay people that, although we’re fighting against, it, we would actually be prepared to defend someone’s right to pass moral judgement and decide we’re not worthy of his service.
I have a friend who is autistic. And it makes me cry, literally, when she tells me of the number of churches that have told her not to come because she would disturb their service (which she wouldn’t), and that her condition is self inflicted, because Mark’s healing of the lame man (take your mat and walk, your sins are forgiven), clearly shows that she is a sinner and should therefore stop her special pleading.
We find these arguments outrageous, immoral and un-Christian and completely unscientific – in fact, just as we find the arguments against homosexuality.
The only difference is that the same sex debate started a bit later in society and that we have stopped locking “nutters” away from civilised society a lot sooner.
But any Christian group desperately wanting to have their prejudice respected in law could point to Scripture to claim a religious opt out… actually, they couldn’t, because no-one in society would tolerate it and there would be a major outcry.
The principle is the same, it’s just our sensibilities that are still slightly different.
Erika, I absolutely agree with you regarding the NHS case. I have not read why she refused to wear the pin rather than the necklace - do we know why?
I'm not sure about the registrar case, because I'm not exactly sure of the registrar's role in the UK. I think that here they are simply front-line bureaucratic clerks who are there to provide government services, and you don't have any right to exercise your own veto regarding services to groups of which you do not approve. If you're able to claim an exemption from providing services for gay people today, what's preventing you from claiming a similar exemption for other groups tomorrow?
Here in the States we've had several cases of pharmacists and pharmacy technicians trying to claim a religious exemption from having to sell contraception. Various states have dealt with this scenario in different ways - http://www.ncsl.org/issues-research/health/pharmacist-conscience-clauses-laws-and-information.aspx - but I'm opposed to letting pharmacists decide what conditions they will dispense drugs for and which ones they will not.
I'd like to know more about the therapist's job description. How much of his position specifically dealt with sex therapy, for instance? I suppose that I'm not in favor of his claiming a religious exemption, but think that this is just one of those awkward workplace situations that call for compromise rather than termination.
The only case I wholeheartedly think is legitimate is the BA one. The idea of an employer other than the armed forces or police having that much detailed control over an employee's personal attire just seems unwarranted.
Regarding the sodomy laws and civil disobedience... As far as I know none of the cases that were prosecuted involved conscious civil disobedience, but were people caught doing things they would ordinarily be doing, sometimes in public but also in the supposed privacy of their homes. I don't that the idea of civil disobedience was ever really explored for those laws; as I recall, we wanted the laws not to be enforced and to be stricken from the books.
I think we probably pretty much agree here.
I had one extra thought earlier, and that is that it is of course perfectly possible for an employer and an employee to write anything they like into an employment contract. And it is also possible for someone to, say, apply for a job as a maintenance man but say at the interview that he struggles with heights, and the employer says, that's ok, we have 3 other guys on the team, they can go up and sort out the roof when there's a problem.
I dare say that happens in a lot of cases anyway, without fuss.
But it could also happen that at the interview the HR people say, sorry mate, we really do need someone who can climb a roof, it doesn't sound like you're the right person for this particular job.
There can be no right for someone to turn up and say he cannot possibly fulfil all of the roles in the job spec but that he still thinks he has a legal and moral right to getting the job.
And that's really the issue here.
I don't know anything about the therapist. I don't know why it seemed so important to his organisation that he should be available for counselling of people he really struggles with. As you say, especially in therapy that is counter productive, and many therapists have some weaknesses where they pass cases to colleagues. I would not expect someone who had been sexually abused as a child to feel comfortable about treating child abusers, for example.
But I would expect a prison service, for example, with a high rate of sex offenders, to be able to specify that they cannot really employ a therapist who cannot deal with many of the people he will come across in this particular set-up.
Opting out has to be a question of mutual agreement. It cannot be a legal right, far less a religious one.
Something just occurred to me regarding the cross necklace situation. I cannot imagine why it did not occur to me before, since I have some personal experience in the area:
Eastern Orthodoxy places great stress on the continuous wearing of the individual's baptismal cross. There's even a Russian soldier, captured by Chechen fighters, who is honored as a modern martyr because his refusal to remove his cross led to his being beheaded. I had my cross stolen in a Navy barracks when I took it off before showering (in order not to damage the enameling); this earned me a royal chewing out by the priest I approached with a request to bless a replacement.
I'm not sure how this figures in to the discussion. There's nothing in Orthodoxy that prescribes the length of the chain from which the cross hangs, and it's frequently worn underneath clothing. But it's absolutely false to say that there's no Christian requirement to wear a cross. There is, indeed, such a requirement for Eastern Orthodox Christians. It may not have to be displayed, but it does have to be worn - and as far as I know, worn as a pendant.
The BA employee is a Copt, and while Copts and Eastern Orthodox are similar in many respects I do not know what the Coptic Church requires concerning this.
Bill, I suppose something like that could be treated like a wedding ring, if a way could be found to wear it without it becoming a safety issue.
The other thing that occurred to me was the comment that the nurse in question had always worn her cross on a necklace but that it had been hidden under her previous uniform and that it only became an issue once the uniform changed to a v-neck where it suddenly dangled.
Whatever it was about, it does not appear to have been about visibility.
And in the BA case, at least, it was initially the visbility that was the issue.
There can me many reasons for Christians to wear crosses. Making public statements is only one of them.
Did your Orthodox cross have to be visible?
Erika, no the Orthodox cross doesn't have to be visible at all, normally. Ordinarily it's worn under one's clothing. I understand that under the Soviets some Christians carried their cross in their pockets in order to avoid detection, but I don't know if that's considered kosher or not.
I think it's a mistake to look at wearing a cross as making a faith statement, while regarding, say, wearing hijab as merely complying with the dictates of one's religion. I suspect that making a statement is part of the reason for many Muslim women wearing hijab. It would be interesting to see the reaction to an employer allowing Muslim women to cover their hair, but refusing them to do so in a way that identified them as a Muslim.
It seems to me that insisting that employees hide all non-mandated religious emblems is sending a message in itself (and not just that the employer is a micromanaging control freak). It carries a strong implication that religious identity is somehow offensive. I would think that all religious adherents, but especially Christians, might very well have to oppose such a employer directive out of conscience to avoid agreeing that their faith is something that ought to be hidden away.
I keep thinking about the position of the Sikhs in this. It's heavily ironic that if Nadia Eweida had been a Sikh she would be allowed to wear a turban - even if there were the possibility of injury or death occurring as a consequence - while her openly wearing a cross, which carries no such safety or health risk, is grounds for termination.
again, yes to what you write.
With one exception. The Sikh not wearing a turban is endangering his own life.
The nurse dangling a cross that has not been disinfected in front of an immuno-compromised child is endangering the child.
And the Sikh cannot be given an alternative place to wear his turban, while the nurse was given alternatives.
Erika, I agree with you about the nurse. As I've written, I think she was offered a reasonable accomidation and turned it down. I really wish we knew why she found it unacceptable - its hard to think of a specifically religious reason for her to do so.
I was only comparing the hypothetical Sikh and the BA employee.