Sunday, 21 December 2008

The anti-gay registrar and the non-gay salesman

It is with considerable relief that I notice (belatedly) that Lillian Ladele's employment tribunal victory has been overturned on appeal. Ladele, you may remember, was the Islington registrar who refused to conduct civil partnership ceremonies on account of her Evangelical Christian beliefs, and then sued for religious discrimination after she was threatened with disciplinary proceedings.

Ladele was backed by the Christian Institute, which funds many such cases. Its director, Colin Hart, said afterwards that "gay rights are not the only rights" (true) and that "if this decision is allowed to stand it will help squeeze out Christians from the public sphere because of their religious beliefs on ethical issues", which is patent nonsense.

I actually have some sympathy for Ms Ladele who, as the appeal tribunal acknowledged, has been cold-shouldered at work and treated badly by her superiors. one Islington official's actions were even described as "improper, unreasonable and extraordinary". This doesn't surprise me: the flipside of political correctness, as practised by local government, often turns out to be victimisation of anyone whose face doesn't fit or who lacks the hypocrisy to mouth the required platitudes at every opportunity. Just think of Haringey social services. But there was an important principle at stake here, and a victory for Ladele would have had wider implications. Her argument that not conducting civil partnerships formed a vital element of her Christian personality was also a bit strange.

Having laws forbidding discrimination of grounds of religion was always likely to produce results - or controversies - such as this, because religion is first and foremost a set of ideas. These ideas, being peculiarly powerful, are capable of becoming a defining element of one's identity, and thus might give rise to actionable discrimination. The classic case is of the (possibly apocryphal) sign that said "No Jews, No Blacks, No Catholics" (or "Irish" - which, tellingly, amounted to much the same thing). Refusing to conduct civil partnership ceremonies is not a defining aspect of Christian faith: there are, apart from anything else, many other Christians who have no such problems. Indeed, since a civil partnership ceremony is not in fact a religious event, it is of little or no interest to religion. It would be a different matter if the law insisted that couples be entitled to have same-sex blessings in a church. As such, Ladele's refusal is illogical as well as unreasonable.

As I stated when I looked at the case earlier this year, there is a proper distinction to be made between the fact of someone's professing a religion and the beliefs and actions that might stem therefrom. Ladele was unwilling to fulfil part of her job: the fact that she gave a religious reason for that refusal should matter no more than if the refusal had been made for political or social reasons or, indeed, for reasons of personal bigotry.

I hope that this case - which isn't over yet, since Ladele and her backers intend to take it to the Court of Appeal - serves to restrict the scope of religious discrimination, which otherwise was threatening to turn into a legal minefield. The law, for better or worse, has decided to treat religion as an ontological category. And, indeed, religious people naturally speak in this way: "I am a" Catholic, Baptist, Jew, Buddhist, Muslim, Jedi, Pastafarian, whatever. Inasmuch as people can be subject to discrimination directed against the fact that they belong to a religion, then the law might be defensible - though I personally object to the singling out of religion (and indeed of sexuality) it this way. The trouble comes when holding a religious belief becomes conflated with acting in a certain way (which might be inspired by religion) and that behaviour, even if it is in conflict with employment obligations, becomes legally protected. For example, a Muslim supermarket worker might refuse to handle alcohol and claim religious discrimination if his refusal was not indulged. In 2007 it was reported that Sainsbury's had made special arrangements for such workers - a worrying sign. Happily in October a Tesco's worker in Derby, for whom no such special arrangements had been made, lost his case.

Mr Justice Elias, who chaired the appeal, described it as "a fundamental error to confuse unreasonable behaviour and discriminatory behaviour." Indeed it is. But the more fundamental error is to confuse discrimination on the grounds of religion with discrimination on the grounds of behaviour which may be religiously-motivated. Either behaviour - in this case refusing to participate in same-sex blessings - is acceptable or it is not. If it is not acceptable conduct for an atheist to engage in, it should not be acceptable for a religious believer either. Frankly, being religious is no excuse. Ladele's background, as it happens, is Nigerian. At the risk of being down the wrath of the gods myself, I would venture that being Nigerian is statistically a better predictor of homophobic attitudes than being a Christian. Certainly, the combination of the two can be scary, as in the famous case of Archbishop Akinola.

This much should be obvious. So why did Ladele initially win the case? Ministry of Truth's Unity had an ingenious conspiracy theory involving the presence on the initial tribunal of a Mr CJ Storr who shares a name (and thus possibly the identity) of the former Director of Education for the Roman Catholic Archdiocese of Southwark. It's more likely, though, that they were bamboozled by the very vagueness of the concept of "religious discrimination". If the notion is to be an acceptable one, it cannot confer positive benefits on people of faith that are not shared with members of other faiths or none. And to refuse to perform reasonable work activities from which other employees are not exempt is to claim special privileges.

Indeed, the appeal ruling (pdf) stated that it "plainly cannot be right" that conduct inconsistent with normal employment obligations should be indulged:

If the Tribunal were right to say that the fact that the claimant’s conduct was the result of her religious beliefs meant that she was being discriminated against on religious grounds, the employer could never justify any refusal to accede to an employee’s demands that he should be permitted to manifest his religious beliefs, however bizarre they may be. For example, an employee who refused to work on a particular day or days of the week for religious reasons, or who insists on praying at various times in the day, or who submits that carrying out various duties is incompatible with his or her religious doctrine, could in all cases be entitled to insist on doing these things and the employer would be obliged in all cases to accede to these demands.

Indeed, given in particular the fact that beliefs may cover a vast range of subjective opinions, the consequences would be extraordinary.

Another of this year's troubling employment tribunals involved the hairdresser Sarah Desrosiers, whose business was almost ruined when she was sued by a young Muslim woman who objected to being told that her hijab was a barrier to employment in Ms Desrosiers' "funky" salon. Absurdly, the applicant was awarded £4,000 for her "distress". Bushra Noah won largely because of the wording of the EU directive involved, which reverses the burden of proof. But the principle involved is surely the same as in the Ladele case: Noah argued that her religion required her to act in a way (here, to dress in a way, but dressing is a form of action, sometimes a loud and aggressive one) that was contrary to the demands of the job. She was not discriminated against for being a Muslim, because one can be a perfectly good Muslim without covering your hair, just as you can be a perfectly good Christian without discriminating against homosexuals.

The other headline-grabbing case in the same genre was that of Stephen English, who won his case for sexual harassment at the Court of Appeal - having previously lost at tribunal level - on account of the homophobic abuse he had suffered at work in Portsmouth. The important point here wasn't that the blinds salesman was not, in fact, gay - he is married with children - but that his colleagues were well aware that he wasn't gay, but taunted him anyway. The fact that he lived in Brighton apparently loomed large in the innuendo-laden banter, as did the fact that he had been to public school. The decision seems fair, so far as it goes: Mr English's life was made a misery, although one might wish he had developed a somewhat thicker skin. It seems a little strange, though, that being bullied on account of supposed sexuality should be grounds for legal action whereas equally unpleasant bullying on the grounds of, say, hair colour should escape such censure.

Religion, race, sexual orientation, biological gender, disability: all now are grounds for claims of discrimination. Age, to a limited and growing extent, also qualifies. Do they have anything else in common? Fashionability? More to the point, is there anything that connects deafness with sexuality but excludes passionate support for West Ham United, or that connects the fact of being Muslim and the fact of being Korean but excludes the genetically predetermined fact of having green eyes? Do albinos qualify under discrimination laws because their coloration counts as a disability, while blondes would be excluded? Perhaps a victim of "blondism", if female, could claim sexual harassment - but where does that leave the bullied male redhead? Pretending to be gay? It's all rather arbitrary. If there are to be laws against discrimination, let them be simplified. It should be wrong to discriminate against someone for something that they cannot avoid, and that is not their fault. But there should be no such protection for people who bloody-mindedly make life difficult for themselves and others, and then turn round and blame God.


Mikey said...

I agree, but how do you define a belief or behaviour as something "they cannot avoid". Some would argue that being homosexual, for example, is inherent in their natural being and therefore unavoidable, while others may suspect that it is, in some cases at least, merely a "lifestyle choice"? Not being gay, I don't know, and the situation is confused because some in the "gay rights" lobby make a point of taking a miltant stance in their campaigning on the issue.

The Heresiarch said...

That's certainly true. Some of them were even demanding that it be included in the census.

As to the "inherent characteristic", that would be problematic, I agree. What I'm trying to get at is the distinction between "being" and "doing". Ladele wasn't simply being a Christian, she was acting in certain ways which she might claim were expressive of her Christianity, but which were incidental. What the origins of a particular state of being might be aren't strictly relevant here. Homosexuality may be a lifestyle choice, or an inherent disposition, or both; either way, it's something a person feels himself to be as a form of identity, and thus can be discriminated against unfairly - whereas it would be quite reasonable to ban an employee from engaging in gay sex in the staff toilets without being accused of "homophobia". Ultimately, it should be up to the person concerned to know what mattered to them. A Conservative working at the BBC or the Guardian might be the victim of politically-motivated harrassment or bullying, and might be just as much a victim as an evangelical Christian working for Islington council. But they shouldn't be allowed to use office hours for canvassing.

WeepingCross said...

I think you work out a very reasonable basis for a sensible approach to this whole issue, and I hope one which finally prevails - if not, we can look forward to chaos. I suppose Ms Ladele's only arguable point might be that the terms of her employment might have changed in a way that she could not reasonably have anticipated when she took it up; but, even to one such as myself not a legal thinker, that seems pretty thin. Besides, surely civil registration of marriages takes no account of a whole range of situations which Christians would also normally find morally objectionable, such as repeated divorce and remarriage. Ms L doesn't appear to have any problem with those.

valdemar squelch said...

Good point, Father W. She was happy to 'marry' heterosexual people who'd been living in sin, by her standards. I've no doubt her colleagues were not nice to her, but as someone who works in a small office with two rather daffy Jehovah's Witnesses, I can sympathise.

Matt said...

As you point out in some of your examples, discrimination arises when one is treated *differently" to someone else on the grounds of sexual orientation, race, gender etc.

You are correct in your assessment of the hairdresser's case because a person of no religion, or another religion who wore a hat all day would be treated the same and dismissed: the action was not discriminatory.

However,it's important to note that - for example - most offices around the country are constantly discriminating on the grounds of gender by having men wear shorts and ties and trousers while women do not have to.

I honestly don't know what your opinion on this would be on that example, but if your "common sense" attitude holds, I suspect you may well say that such discrimination is in fact acceptable in some way, when logically, it is not, unless you change opinions and accept other forms too.

The kind of logical approach you show in many of your opinions is commendable, but trying to temper it with "common sense" would simply make such positions logically untenable and your argument fail.

In reality "Common sense is the collection of prejudices acquired by age eighteen.", as Einstein put it. To hold truly tenable positions, one has to dismiss culturally-biased irrelevancies and stick to the logic.

Do you?

WeepingCross said...

How long before we raise the Naked Rambler? If you see what I mean.

Tony Sidaway said...

I could be wrong (in which case I'll happily eat humble pie) but I don't think Ladele will be granted permission to appeal either by the EAT or the Court of Appeal. Mr Justice Elias didn't break any new legal ground; most of his judgment was devoted to an object lesson in how and when to apply a crucial legal test which the London Central Employment Tribunal had misinterpreted.

Tony Sidaway said...

Matt, on your comment on the hairdresser case, I'd like to make a point. Your argument seems to be that the rule is neutral and would apply equally to an atheist who wore a hat.

Indirect discrimination may arise when "the same apparently neutral rule applies equally to all but has anadverse effect on a particular group" (UKEAT/0453/08/RN, the Ladele appeal).

Thus one might require all employees to be clean-shaven (which would disadvantage men whose religious beliefs require them to grow their beards). And in this case, a rule that one must not where a facial covering at work, which disadvantages women whose religious beliefs require them to cover their faces in public. Where such indiscrimination has been established to occur, the burden of proof is on the employer to "justify" the rule. That is, to show that it is not unlawful discrimination.

In this case the Council applied a rule designating all its registrars as Civil Partnership registrars in order to meet a policy objective: it's Dignity For All policy. The EAT conceded: "Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate--and in truth it was bound to be--then in our view it must follow that thecouncil were entitled to require all registrars to perform the full range of services."

Thus the Council had a justification for applying a rule that indirectly discriminated against those who, for religious reasons, do not wish to act as registrars in Civil Partnerships.

In the case of the hairdresser, there would also have to be a justification for the rule. Presumably the employer did not raise such a justification (though it may well have had one). In indirect discrimination, it is not enough to say that the rule applies to all people irrespective of religious belief.

Tony Sidaway said...

I'll hazard a guess that the next stop for the Christian Institute will be an attempt to get support for legislation explicitly providing for a conscience rule, particularly for public employees. I hope I'm wrong, or that they are unsuccessful in any such attempt, which in my opinion would give altogether too much power to Christians and others who wish to subvert aspects of public policy to which they are opposed.

Tony Sidaway said...

By the way, Usefully Employed, who is apparently a specialist in employment law, provides a good summary of the points of the judgment in "Islington successfully appeals Ladele - religious beliefs do not trump social equality". I strongly recommend it to anyone interested in more than just the newspaper headlines.