Religious Freedom and Balancing Clauses in Discrimination Law

I have just returned from an excellent conference in Oxford on Magna Carta and Freedom of Religion or Belief, sponsored by the International Centre for Law and Religion Studies. While there I had the privilege of presenting a paper on the subject, “Freedom of Religion and Balancing Clauses in Discrimination Legislation”, which can be downloaded here for those who are interested. The paper provides an overview of some of the interactions between laws prohibiting unjustified discrimination, and the protection of religious freedom, where there may sometimes be a clash between these different important rights. When I have had a chance to digest it properly I will probably explore in more detail some of the implications for religious freedom of the recent US Supreme Court decision on same sex marriage, which intersects with some of the material in the paper.

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Freedom of religion in the nursery- homosexuality and the jilbab

Two recent UK decisions (oddly, both involving employment in nurseries) provide interesting examples of the operation of religious freedom principles in the workplace. In one, an evangelical Christian employee was found to have been discriminated against on the ground of her religion, by being dismissed after a conversation on homosexuality. In another, a Muslim applicant for a position claimed that she had been denied a job at a nursery because of her long robe, a “jilbab”, worn in accordance with her religious beliefs; but her claim of religious discrimination failed.

Discussion about homosexuality

In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd (Case No 3300656/2014; ET, 21 May 2015) the claimant, Sarah Mbuyi, got into a conversation with a fellow worker, “LP”, about the Christian view of homosexuality. The details of the conversation were in dispute, but Employment Judge Broughton said, at para [46], that on the evidence that had been accepted by the employer (who claimed that their decision had been made solely on Ms Mbuyi’s evidence) the conversation involved LP asking questions about Ms Mbuyi’s church, mentioning that she (LP) was a lesbian and asking whether she would be welcomed at the church, and enquiring as to whether God would approve of her relationship. Ms Mbuyi conveyed that, while God accepts sinners, God was “not OK” with homosexual behaviour. LP was upset and complained to a supervisor.

On the basis of that conversation Ms Mbuyi was called to a disciplinary hearing without being told beforehand of the allegations, nor being warned that serious consequences might follow. She was asked whether, if she had been asked to read a book to the children in her care about a same sex family, she would do so; she responded that she would probably get a colleague to read it. She was then asked, without having used the word herself at all, “Do you think LP is wicked?” – see para [60]. Her response was “we are all wicked”; but this comment was later used as part of the evidence to suggest that she had been “harassing” her colleague. A few days later she was dismissed for “gross misconduct” on the basis of harassment, specifically (see [68]):

On Monday 6 January 2014 you entered into a conversation in the workplace with your colleague, LP, and the topic moved on to the issue of homosexuality… During that conversation you stated that homosexuality was a sin.

Ms Mbuyi then found other work, but took action against her former employer for discrimination based on harassment, direct discrimination on the grounds of religion or belief, and indirect discrimination on the same grounds. To summarise, her claim of harassment failed for the interesting reason that, when asked how she felt about the whole episode, she responded (see [132]) that “It was great. I could tell the gospel”! In other words, she said she did not feel bad about the incident.

However, her claim for discrimination was successful, not being dependent on how she felt about the episode. (And, of course, as a matter of precedent for the future, not all Christians dismissed in these circumstances would necessarily feel the same way!) The most obvious basis for her claim was that of “indirect discrimination”- that a requirement had been placed on her that, while not directly discriminatory, had a more serious impact on those with her religious belief than it would on others. This was indeed one of the grounds accepted by the Tribunal for her case succeeding. In terms of s 19 of the Equality Act 2010 (UK), a “provision, criterion and/or practice” (PCP) had been applied to her, that employees should not express any adverse views on homosexuality or describe it as a “sin”. (See para [101.1]) This PCP put “evangelical Christians” at a disadvantage in comparison to people in the community generally. Judge Broughton noted that art 9 of the European Convention on Human Rights protected religious freedom, and in particular that:

[106] The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (Kokkinakis v Greece, 25 May 1993, ECHR).

The Judge also noted that while an earlier approach in the UK suggested that an employee who found their religion clashing with their job, should just get another job (see [111]), this was no longer the approach favoured in the European Court of Human Rights since the decision in Eweida & Ors v UK [2013] (see the quote at [112]). Here the employer needed to consider whether it was “proportional” to a “legitimate aim” to have treated the claimant in this way. While the Judge accepted that a desire to have a “non-discriminatory” workplace was a legitimate aim, the way that the claimant had been treated in these circumstances was not a “proportionate” response- see the discussion at paras [187]-[193]. Features that led to this conclusion were that, if the issue of “discussions about homosexuality” was the real concern, then the colleague LP (who, on the accepted findings, had initiated the conversation) had not been disciplined; that no prior warning was given; that no opportunity was given for an undertaking to be offered that similar conversations would not be initiated by the claimant in the future.

While the above “indirect discrimination” analysis seems to be the most obvious way of analysing the circumstances, it is interesting to note that the Tribunal also found that there had been “direct” discrimination. Without going into all the findings, Judge Broughton found that the way the disciplinary hearing had been conducted involved a clear signal that there had been a pre-judgment made on the basis of a “stereotype”. Sufficient evidence was offered of “bad faith” (including matters such as putting the word “wicked” into the claimant’s mouth when she had not used it prior to the interview) to raise a presumption that she had been dismissed on account of her faith, and the employer had not produced sufficient evidence to rebut this finding (see the analysis of the “burden of proof” in direct discrimination cases in paras [115.3]-[115.4]).

To be frank, I have mentioned this second finding briefly because I suspect it is one that may be overturned on appeal, if there is one. The case does not really seem to rise, on my reading, to one of “direct” discrimination. But I think the decision on “indirect” discrimination seems justifiable. To dismiss an employee on the basis of a one-off conversation on a topic initiated by a fellow worker clearly seems disproportionate to legitimate aims of avoiding discrimination and harassment. While dismissal might be justified if there is a pattern of unwanted conversations foisted on others, as Judge Broughton said, here:

“there had been no warning and the dismissal was based primarily on an honest reply to a query”.

The length of the Jilbab

In the second case, Begum v Pedagogy Auras UK Ltd t/a Barney Lane Montessori [2015] UKEAT 0309_13_2205 (22 May 2015), the claimant, a Muslim woman, applied for a position at a nursery where other Muslim women were already employed. In the course of the interview, however, the employer noticed that the long traditional cloak, the “jilbab”, which she wore, extended to cover her feet completely. She said to the claimant that this might be a health and safety risk, as a tripping hazard, when moving around the nursery and picking up children, and asked her to consider wearing a shorter jilbab if she were to get the job. Evidence was that this was not a pretext of any sort, that health and safety issues of all sorts were regularly considered by the employer- see [12]. But while the interview concluded on a positive note, with the claimant to contact the employer about a starting date, she did not do so. The next they heard from her was a complaint of religious discrimination.

In this case the Employment Appeal Tribunal upheld the finding of the Employment Tribunal at first instance that there had been no discrimination on the basis of religion. The case involved, as did the Mbuyi case, the application of s 19 of the Equality Act 2010 (UK). The relevant PCP was that a long cloak covering the feet not be worn. It was accepted that the wearing of the jilbab was a manifestation of the claimaint’s religious beliefs, and the issue was whether the requirement that had been imposed was a proportionate means of achieving a legitimate aim- see para [67].

There was in fact some factual dispute about what had been said. The EAT accepted that at least a requirement had been imposed that any garment to be worn in the workplace not be a tripping hazard- see [73]. On that basis, this PCP “could not be said to be either wrong or unreasonable, and in our opinion is patently not so” – [74].

For further analysis of the decision, see comment at the Law and Religion UK blog by Frank Cramer.

Australian law

Would the result of these decisions have been the same in Australia? In my blog on the recent head-scarf case in the US I noted that there is no general law prohibiting religious discrimination which applies across Australia. However, in a jurisdiction like Victoria, where there is such a law, it seems to me that these decisions should have been decided the same way. As noted there, the issue under s 9 of the Equal Opportunity Act 2010 (Vic) s 9 would be whether a “requirement, condition or practice” (like the PCP spoken of in the UK cases) put the plaintiff at a disadvantage on the basis of religion or belief, and whether it was “reasonable”.

It seems to me that the Begum case would be reasonably straightforward, as it was in the end in the UK. To impose a requirement in the interests of safety, especially where the requirement was not “no religious dress” but simply “a slightly shorter robe”, would probably be held to be reasonable. (In Victoria, s 75 of the Act means that behaviour is not discriminatory if it is “necessary” to do something to comply with other legislation; and it might be argued that a safety requirement was mandated by the Victorian Occupational Health and Safety Act 2004.)

Arguably the outcome of a case like the Mbuyi one would be more uncertain. It seems to me, though, that a good argument could be made that in circumstances identical to this decision it would not be “reasonable” to impose a requirement that “no conversations expressing a Biblical view of homosexuality be had on pain of instant dismissal”. Determination of what is “reasonable” would be made having regard to s 9(3) of the EO Act:

(3)     Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following—

(a)     the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b)     whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c)             the cost of any alternative requirement, condition or practice;

(d)     the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e)     whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of     an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

Here the “censorship” of conversations on topics on which employees may wish to converse would be a serious disadvantage, arguably disproportionate to the result of seeing that employees were not harassed. Introduction of principles encouraging respect for other points of view, and even clear guidelines about not pursuing topics of conversation where one party indicates that they do not wish to discuss them, are clearly a better response. The costs of having a conversation about these issues for the future would be minimal, and impose much “less disadvantage” than a blanket prohibition on conversations. There are also other important issues at stake in terms of the value of free speech and open discussion on important issues among employees without a fear that retribution will follow a request to talk about a topic initiated by a colleague. It is to be hoped that a spirit of open discussion about important issues will allow continued freedom of religion and belief in the workplace.

Headscarves and Religious Freedom in the Fashion Industry

The United States Supreme Court has just handed down a very interesting religious freedom decision in Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, Inc (No 14-86, June 1 2015, 575 US ____ (2015)). The case involved a Muslim lady, Ms Samantha Elauf, who had applied for a job in a store run by high end fashion label Abercrombie & Fitch (A&F). In the interview she wore her head scarf, which she usually wore in line with her religious beliefs, but was not specifically asked about this. A&F maintained a “Look” policy applying to staff working in their stores which included a “no headgear” requirement. The person who conducted the interview told her supervisor that she thought Ms Elauf would be suitable, but noted that she seemed to wear a scarf for religious reasons. The supervisor directed that she not be hired. The Equal Employment Opportunity Commission (EEOC) sued A&F on behalf of Ms Elauf, alleging unlawful religious discrimination.

The Law

The case, then, was not one which directly involved the First Amendment to the US Constitution, or the Religious Freedom Restoration Acts which have recently generated such controversy. The legislation involved was Title VII of the Civil Rights Act of 1964, 78 Stat 253, which relevantly makes it unlawful for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,color, religion, sex, or national origin. (42 U. S. C. §2000e–2(a).; emphasis added)

Another crucial part of the legislation for the Supreme Court’s decision is the definition of “religion”. The majority decision noted (at 3):

The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e(j).

It is somewhat unusual to incorporate a substantive provision about “reasonable accommodation” and “undue hardship” into the definition of “religion” (Justice Thomas in his dissent here, at 9, notes a previous case that said this inclusion was “somewhat awkward”, which I think is putting it mildly). This awkward structure led to some of the disagreements within the Supreme Court.

The Decision of the Court

The outcome of the decision is that Supreme Court, by an 8-1 majority, over-ruled the decision of the lower, Tenth Circuit, appeal court that A&F could not be held liable because Ms Elauf had not explicitly requested a religious accommodation. However, even within the 8 Justices who said that the Tenth Circuit had got it wrong, and needed to reconsider, there is an important difference of opinion. A sizeable majority of 7 Justices joined in an opinion written by Scalia J in which his Honour held that A&F’s knowledge that Ms Elauf wanted to wear the scarf for religious reasons was irrelevant- that for an action of an employer to be directly discriminatory on the ground of religion (under a “disparate treatment” or “intentional discrimination” ground, contained in Title VII, §2000(e)-2(a)(1)) all that has to be shown is that a “suspected” requirement for “accommodation” (that is, some adjustment of existing rules, such as the “no headgear” policy here) on religious grounds was a “motivating factor” in the decision to subject the employee to a disadvantage. See the following comments from pp 3 and 5 of the majority opinion:

[A]n applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision…

an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.  Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

On the other hand, Alito J, concurring in the result, disagreed with the majority on the question of “knowledge”. His Honour held that a requirement that the employer know that religious reasons required an “accommodation” should be implied in the terms of the legislation. However, since there was sufficient evidence in the agreed facts to lead to a finding of such knowledge, he thought that the appeal ought to succeed. Like the majority, though, he agreed that there was no need to prove that an actual request for such accommodation was made by the employee.

With respect, the concurring decision is fairly persuasive. As Alito J notes, it seems a very odd reading of the statute to say that an employer who had no idea at all that a religious reason was involved, could be held to have breached the statute, the aim of which seems to be to prohibit “intentional” discrimination (though that word is not used). The majority avoids this outcome by its comment suggesting that a “suspicion” of a religious reason would be enough; but to be frank this word really pops up from nowhere, it is not in the legislation, any more than a “knowledge” requirement is. But something of the sort seems needed. In a footnote, p 6 fn 3, the majority say they don’t need to choose between a “suspicion” and a “knowledge” criterion. But I think Alito J seems to be correct to say it needs spelling out to make the legislation operate sensibly- see p 4 of his decision. (As Thomas J says at 4-5 of his judgement, the majority decision “leaves the door open” to argue a “strict liability” which would not even depend on suspicion, by refusing to resolve the issue.)

In dissent, Thomas J holds that the majority are wrong to characterise this case as one of “direct” discrimination, “disparate treatment”. Instead, it should be regarded as a classic example of “indirect”, or “disparate impact”, discrimination, and resolved under the principles developed in those cases. However, his Honour does not then go on to apply the “indirect” provision to this case, being content to say that he would affirm the judgment of the Tenth Circuit decision.

Comment

I agree with the outcome of this case. I will demonstrate why shortly, by referring to Australian law. But it has to be said that it certainly leaves some uncertainty in the area of protection from religious discrimination. The majority judgment does seem to open up the possibility of some odd decisions, where an employer may refuse to accommodate a religious belief on the basis of a “suspicion” and be found guilty of direct discrimination under Title VII. This seems a very high bar. I think, while I am not an expert in US law, that the explanation can partly be found in the different approaches of Scalia J (author of the majority judgment) and Alito J to the question of statutory interpretation. Partly as a result of the many decisions that the US Supreme Court has to make on the meaning of that country’s Constitution, and also for other reasons, Scalia J is a fierce proponent of the view that a statute has to be interpreted by strict reference to the words chosen by the law-makers, with possible reference to dictionaries of the English language available at the time the legislation was enacted, but excluding any consideration of what was said in Congress or what a judge believes the “policy” of the statute is. Hence his Honour’s sharp comments on p 5 that the court should not “add words to the law to produce what is thought to be a desirable result”.

On the other hand, Alito J adopts the interpretation he does, requiring “knowledge” of a religious belief needing accommodation, because, as he says at p 4 of his judgment, “This interpretation makes sense of the statutory provisions”. With respect, I think his Honour is correct; and interestingly, despite Scalia J’s refusal at one point to “add words”, the word “suspicion” pops up in the majority judgment at various points with no direct statutory warrant. (Partly it is used because the legislation does refer to “motive”, see majority p 6 fn 3; but since this word needs explanation the court has to adopt some other criteria.)

In the end it has to be said that this case, which should be reasonably straightforward, is complex because of the “awkward” way that the definition of “religion”, noted above, is drafted. The question of whether a “reasonable accommodation” is possible is logically nothing at all to do with whether the employee has a religious belief or practice; that is an issue which needs to be dealt with, but not as part of the definition of “religion”. In addition,  by incorporating “all aspects of religious observance and practice” into the definition of “religion”, the way is open for the confusion evident here. Scalia J seems correct if the statute is to be read literally: if “religion” includes any practice that might be connected with religion, then making an employment decision on the basis of, say, an employee’s desire not to work on the Sabbath is itself to discriminate directly on the basis of “religion”, even if the employer could not and does not know that the employee is Jewish. But as Alito J says, it makes no sense for the statute to operate that way.

Under Australian law?

How would this case have been decided under Australian law? Briefly, it would not have even arisen under the law of the Commonwealth or NSW, as those jurisdictions have no law prohibiting discrimination on the basis of religion. (Even the provisions of s 351 of the Fair Work Act 2009 (Cth) which forbid discrimination against a “prospective employee” on the basis of religion, would not seem to operate if the events occurred in NSW, as under s 351(2), the prohibition “does not apply to action that is: (a)  not unlawful under any anti-discrimination law in force in the place where the action is taken.”)

However, in a State that does contain such laws, then under the usual Australian approach this would be an example of “indirect”, not “direct”, discrimination (as Thomas J in dissent argued should have been the case under Title VII.) So in Victoria, for example, under the Equal Opportunity Act 2010, the “attribute” of “religious belief or activity” is one of the protected attributes- see s 6(n). Under s 9(1) it is “indirect discrimination” where:

    (1)    …a person imposes, or proposes to impose, a requirement, condition or practice—

(a)     that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(b)     that is not reasonable.

Under s 16 an employer must not “discriminate” on the basis of protected attributes when determining to offer jobs. Under s 7 this word includes “indirect” discrimination. Here it seems clear that a requirement that a worker not have headgear would be a condition that will have the effect of disadvantaging those who have the attribute of a traditional Muslim belief that women ought to have their head covered. The court would then need to consider whether this requirement was “reasonable” or not taking into account a range of matters noted in s 9(3), including whether some “reasonable accommodation” is possible. It seems likely that a court would hold that a requirement merely based on a desire for a “Look” might not be sufficiently important to involve rejecting employment to a Muslim woman. That at least is where the discussion would take place, which seems the right approach.

Protection of the freedom of religion is an important issue. It is to be regretted, in my view, that there is no such general provision in Commonwealth and NSW law. This case illustrates that the law can act to protect the rights of religious minorities, and it would be good if the law of Australia did so more clearly.