Abstract
With some qualifications, this article endorses Brian Leiter’s argument that religious accommodation should not shift burdens from believers to non-believers. It argues that religious believers should take responsibility for their beliefs and for meeting the demands of their beliefs. It then examines the implications of that argument for British law on indirect discrimination (disparate impact) as it relates to religion or belief: burden-shifting from believers to employers and providers of goods and services should be deemed acceptable only insofar as the burden incurred by the employer or provider is ‘insignificant’. Legal exemptions should satisfy a similar test. Why should there be religious accommodation at all, even if it entails no significant burden-shifting? The author agrees with Leiter in finding the most plausible answer in the claims of conscience rather than in general theories of equality or features special to religion. Those claims can reasonably be made in respect of liberty of conscience but also when conscience is merely disadvantaged.
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Notes
For example, Eweida v. British Airways [2008] UKEAT/0123/08/LA, paras 11, 12, 15, 49, 63.
The others are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex, and sexual orientation; Equality Act 2010 Pt 2, Ch. 1, s. 4.
British law on religious discrimination has its origins in the EU: Council Directive 2000/78/EC, 27 November 2000, establishing a general framework for equal treatment in employment and occupation. It therefore has much in common with the discrimination law of other EU countries. See Doe (2011, pp. 64–78).
My account of Noah v Desrosiers [2008] is based on the (unpublished) report of the Employment Tribunal: case number 2201867/2007. The case arose before the Equality Act 2010 and was pursued under the Employment Equality (Religion or Belief) Regulations 2003 but, for the most part and for what matters for my purposes, the substance of those Regulations remained unchanged in the Equality Act 2010.
Mba v. The Mayor and Burgesses of the London Borough of Merton UKEAT/0332/12/SM. This case also arose before the passage of the Equality Act 2010, and, like Noah, was pursued under the Employment Equality (Religion or Belief) Regulations 2003.
Ibid. paras 4 and 5.
Ibid. para. 19. The other difficulties created for the employer by exempting Ms Mba from Sunday working were said to be that it limited flexibility; it was more costly since it meant the Council had to employ agency staff, who were less well trained; that, in turn, meant that the quality and continuity of service delivered to children with disabilities was not always as high as it might have been.
Ibid. paras 46–48.
I am grateful to Cécile Laborde for helping to clarify my thinking on this point.
I say ‘by implication’ because section 3 of the Human Rights Act 1998 requires courts to construe domestic law compatibly with European Convention rights.
R v. Secretary of State for Education and Employment and others, ex parte Williamson [2005] UKHL 15, para. 23.
Ibid. para. 22.
The phrase ‘burden-shifting’ also applies less literally to some cases of IRD than to others. An instance is Ladele v. London Borough of Islington [2008] UKEAT/0453/08/RN; [2009] EWCA (Civ) 1357. In that case an evangelical Christian, Lillian Ladele, who worked as a registrar of births, deaths and marriages for Islington Council but who believed that it was sinful for sexual relations to take place outside marriage, asked to be exempt from officiating at civil partnership ceremonies. The Registrar’s Office conceded that it could accommodate Ladele’s wish without difficulty and without needing to deny anyone a civil partnership. It refused Ladele’s request because it believed her request contravened its ‘Dignity for All’ policy, which aimed to promote equality amongst its staff by forbidding discrimination, including on grounds of religion and sexuality. The ET that first heard the case ruled in Ladele’s favour; ET case number 2203694/2007. On appeal, an EAT over-ruled the ET and held that the Office’s policy, and its application to Ladele, were proportionate. The Court of Appeal upheld the EAT’s ruling. Had Ladele won the case, the ‘burden’ the Office would have incurred was tolerating (what it believed to be, but Ladele did not) a departure from its Dignity for All policy. Another case involving the same sort of issue was McFarlane v. Relate Avon Ltd [2010] EWCA Civ 880. I discuss both cases in relation to toleration in Jones (2012). See also Vickers (2010).
Noah v. Desrosiers [2008] ET case number 2201867/2007, para. 160.
Mba v. The Mayor and Burgesses of the London Borough of Merton UKEAT/0332/12/SM, para. 46.
In addition, the EAT’s claim was perverse in that a home whose staff included only one sabbatarian would be more likely to be able to accommodate her wishes consistently with delivering care throughout the entire week than a home whose staff included many sabbatarians.
Quoted in Eweida v. British Airways [2008] UKEAT/0123/08/LA, para. 18. This balancing approach has its origins in judicial interpretations of earlier laws governing indirect discrimination on grounds of sex and race; see Bamforth et al. (2008, pp. 299–304, 321–325).
Initially by the Motor-Cycle Crash Helmets (Religious Exemptions) Act (1976) and later by the Road Traffic Act (1988), s. 16(2). For further details of the law relating to this exemption, see Poulter (1998, pp. 297–301).
Employment Act (1989), s. 11.
Criminal Justice Act (1988), s. 139.
Now under schedule 12 of the Welfare of Animals (Slaughter and Killing) Regulations, 1995; but legal exemptions to permit ritual slaughter date back to the nineteenth century. See Poulter (1998, p. 132).
In fact most animals slaughtered by Halal method in Britain are stunned before slaughter. A Survey of the Food Standards Agency for 2011 found that fewer than 20 % of animals slaughtered according to Halal requirements were not stunned before slaughter. See, Food Standards Agency, Results of the 2011 FSA Animal Welfare Survey in Great Britain, paras 4.14–4.16; available at http://multimedia.food.gov.uk/multimedia/pdfs/board/fsa120508.pdf (accessed 20 June 2014).
The same attention to perceived need is illustrated by the different histories of discrimination law in Britain and Northern Ireland. Legislation prohibiting racial discrimination was first introduced in Britain in 1965 and strengthened by further legislation in 1968 and 1976; similar legislation was not introduced into Northern Ireland until 1997. By contrast, legislation prohibiting discrimination on the ground of religious belief was introduced in Northern Ireland in 1976, but not in Britain until 2003. Discrimination on the ground of political opinion also became an offence in Northern Ireland in 1976, but political opinion remains a characteristic unprotected by discrimination law in Britain.
Arguably, if an employer or provider deliberately constructed a PCP in order to discriminate against a particular group, that would constitute direct rather than indirect discrimination.
For an extended critique of Eisgruber’s and Sager’s equal liberty approach to the claims of religion, see Laborde (2014).
There are other well-canvassed possibilities that I cannot properly consider here, especially that religion is good and that religious identities merit special recognition. Briefly the claim that religion qua religion is simply ‘good’ is (i) highly and rightly controversial (ii) bizarre in its indifference to the particular content of particular religions, and (iii) at some distance from a case for accommodation. Identity claims (i) are too indiscriminate to privilege religious identity (cf. Leiter 2013, pp. 32–33) and (ii) coexist uncomfortably with genuine claims of belief. Cf. Jones (1999, 2006).
For well-founded criticism of the view that non-religious conscientious convictions should count alongside religious beliefs only if they are ‘philosophical’, see Maclure and Taylor (2011, pp. 95–97). The Employment Equality (Religion or Belief) Regulations 2003 (now superseded by the Equality Act 2010) stated explicitly that ‘religion or belief’ meant ‘any religion, religious belief, or similar philosophical belief’ (regulation 2, my emphasis). Under those Regulations, an EAT ruled that a belief in man-made climate change and its resulting moral imperatives was a ‘philosophical belief’; Grainger PLC & Others v. Nicholson [2009] UKEAT/0219/07/ZT. Another ET ruled that ‘belief’ did not include political beliefs since they were not similar to religious beliefs; Baggs v. Fudge ET case number 1400114/2005. See further Sandberg (2011a, pp. 46–56). In a more recent case, but still under the same Regulations, an ET ruled, surprisingly, that a belief ‘that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion’ was a ‘philosophical belief’; Maistry v. The BBC ET case number 1313142/2010.
Not everyone is persuaded by this line of argument; see, for example, Arneson (2010).
For example, denying a pupil the freedom to attend a particular school whose uniform policy is at odds with that pupil’s form of religious dress, as in Begum v. Denbigh High School [2006] UKHL 15.
In a recent case, the ECtHR did find that an employer (British Airways) had interfered with the right of an employee (Nadia Eweida) to manifest her religion in not accommodating her wish to wear a cross visibly on her uniform; Eweida and Others v. The UK [2013] ECtHR 37, paras. 89–95. However, in that case the claim failed under indirect discrimination law because Eweida had not established that the relevant PCP disadvantaged or would disadvantage a group (‘persons with whom B shares the characteristic’) rather than only herself. Both the ET and the EAT judged the PCP itself to be disproportionate; Eweida v. British Airways PLC [2008] UKEAT/0123/08/LA, paras 19, 65–75. The Court of Appeal took a different view; Eweida v. British Airways PLC [2010] EWCA Civ 80, paras 30–39. So did a dissenting judgement in Eweida and Others. For discussion of Eweida and Others and its significance, see Leigh and Hambler (2014).
Leiter gives the right to wear certain religious garb as an example of an exemption that does not shift burdens (2013, p. 100), but there have been many cases in which the other party has seen that alleged right as burdening and in which the significance of the burden has been in dispute. In addition to Noah, see for example the case of Begum cited in note 31.
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Jones, P. Accommodating Religion and Shifting Burdens. Criminal Law, Philosophy 10, 515–536 (2016). https://doi.org/10.1007/s11572-014-9328-z
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DOI: https://doi.org/10.1007/s11572-014-9328-z