Conflicts between religion or belief and other protected groups

1. Conflicts between religion or belief and other protected groups Peter Reading Director of Legal Policy Equality and Human Rights Commission, Britain

2. Overview This presentation will cover : • An overview of the Equinet Law in Practice Working Group Report on Religion or Belief • The areas where conflict arise • Several key cases involving the Equality Bodies and principles applied to resolving conflicts • Some emerging conclusions

3. Equinet report on religion or belief The Report will: • Outline the legal framework for protection from religious discrimination and freedom of religion under EU Equality law and article 9 ECHR • Outline the ways in which issues of religious discrimination and freedom of religion are developing across employment, education, provision of goods and services, public functions such as police, and public spaces • Analyze the cases based on two categories: • Religious discrimination/ manifestation claims generally • Religious discrimination/ manifestation claims where conflicts arise

4. Equinet report on religion or belief • Religious discrimination/ manifestation claims generally • Requests for adjustments in employment based on religious practices or belief (working hours, dress codes) • Religious clothing in schools • Refusal to provide a service (eg public security issues and Muslim dress) • Religious discrimination/ manifestation claims where conflicts arise • Sexual orientation • Children • Gender

5. Types of Conflicts: sexual orientation • Employment • Employee refuses to perform a task because of religion or belief which does or may discriminate against groups on grounds of sexual orientation • Genuine occupational requirements exception relating to religion: Employment Directive 2000/78/EC 2. Provision of goods and services - Service provider refuses to provide a service on grounds of sexual orientation

6. Types of Conflicts: sexual orientation • Employment Position of registrars of marriages and civil partnerships Ladele v Islington Borough Council Court of Appeal (UK) Registrar refused to perform civil partnerships for same sex couples on grounds of religious beliefs Claim of religious discrimination and breach of article 9 ECHR Held: was indirect discrimination on grounds of religion but was justified, no breach of article 9 Factors: public position of registrar, could not perform key part of role, may result in discrimination against gay people (chilling effect)

7. Types of Conflicts: sexual orientation • Employment Position of registrars of marriages and civil partnerships Civil Registrar case Dutch Equal Treatment Opinion 2008-40 (Netherlands) Man applied to become registrar, position required person to perform same sex marriages and partnerships. Man said he could not on grounds of religion and claimed indirect religious discrimination Held: was indirect discrimination but justified Factors: was proportionate response, not merely asking for change in way service provide but complete exemption regarding a group, constitutes sexual orientation discrimination

8. Types of Conflicts: sexual orientation 1. Employment • Genuine occupational requirements exception relating to religion: Employment Directive 2000/78/EC Supreme Court Case 247 1 (8 June 2005) (Hungary) Declaration by Calvinist University that cannot educate and recruit for employment of pastors and teachers of religion homosexuals Sexual orientation discrimination claim Supreme Court held it was proportionate to exclude homosexuals from theological education Questionable decision: not likely to comply with Employment Directive which prevents use of exception to justify discrimination on other grounds

9. Types of Conflicts: sexual orientation 2. Provision of services Hall and Preddy v Bull and Bull (UK) Bed and Breakfast owned by Christian religious couple, refused to provide room to homosexual couple as they were not married. Homosexual couple claimed sexual orientation discrimination. Religious couple claimed would be a breach of their article 9 rights. Held: either direct or indirect sexual orientation discrimination, no breach of article 9

10. Types of Conflicts: children Arises in employment, education and service provision Unlike sexual orientation cases which usually involve discrimination, child cases usually concern the protection of their best interests and of their right to education HALDE decision No 2006-242 (France) Youth leaders contract was terminated, work involved leisure and sporting activities for promotion of social integration of autistic children Claimant arrived at work wearing a veil and refused to go swimming with the children. Was indirect religious discrimination but justified on grounds of need to ensure safety of children using pools

11. Types of Conflicts: children Williams v Secretary of State for Education and Employment [2005] 2 WLR 590 Parents claimed that legislation that prohibited corporal punishment in schools interfered with their ability to manifest their article 9 right to freedom of religion. House of Lords found that the interference with their rights was justified to protect the rights of children from physical abuse

12. Types of Conflicts: gender Arise in situations primarily of employment and education Refusal to perform task with a woman Supreme Court KKO:2010:74 (Finland) Refusal of male priest to hold religious service with female priest on grounds of religious belief. Held: was direct sex discrimination. Article 9 can be limited to protect the rights of others

13. Types of Conflicts: gender Refusal to shake hands with persons of opposite sex: CGB 7 November 2006, 2006-221 (Netherlands) Musilm female teacher stated on religious grounds she no longer wished to shake hands of men was suspended. Claim of indirect religious discrimination and breach of article 9. CGB Held: was legitimate aim of having practice of shaking hands to promote respectful manners but was not proportionate, are different ways to be respectful in a diverse school. Court of Appeal held: was indirect religious discrimination but was justified. Not shaking hands could be seen as confrontational, straining relations, weight to be given to having uniform rules

14. Emerging Conclusions 1. Most conflict cases are determined on the basis of indirect religious discrimination claims as they generally relate to neutral practices that have a disproportionate impact on religious groups 2. Actual or potential discrimination or abuse of the human rights of other protected groups will be key to determining whether there is a legitimate aim and if so whether its proportionate 3. In sexual orientation conflict cases, claims of sexual orientation discrimination my also arise and be established 4. The concept of making adjustments for religious belief are unlikely to be reasonable where they would or may result in discrimination against other groups

15. Emerging Conclusions 5. Article 9 claims are generally unlikely to succeed where there are conflicts as the right to manifest your belief can be limited to protect the rights of others 6. There is a need for the extension of EU Equality law beyond the employment sector for religion or belief, sexual orientation, children 7. The Religion or Belief exception in the Employment Directive may be being inappropriately applied to permit sexual orientation discrimination and a reference from a Member State may help clarify 8. It may be helpful for Equality Bodies and the European Commission to produce practical guidance on how to balance conflicting rights.