Please ask Irish Senators today to oppose religious job discrimination in Seanad tomorrow, Wednesday 9 April

This Wednesday 9 April, Irish Senators will discuss a Bill that aims to amend Section 37 of the Irish Employment Equality Act. This is the Section that allows religious institutions, including schools and hospitals, an exemption to discriminate against employees to protect the religious ethos of their institution.

This is a link to the Bill.

Atheist Ireland has sent the following briefing document to all Senators. We are also asking you to please contact one or more Senators today, and to ask them to read our document and to amend the law to effectively remove all unjustified religious discrimination from the Act.

This is a link to email addresses of all Senators. Please email today any Senators that you feel might be supportive.

Atheist Ireland has previously made a written submission to the Equality Authority on this issue. This includes a joint submission that we made along with the National Secular Society UK to the European Commission in which we argued that the Act contravenes the European Equality Directive 2000/78.

The Bill that the Senators will be debating on Wednesday essentially amends Section 37 as follows:

  • Subsection 1(a) allows religious bodies, educational or medical institutions to discriminate on the ground of religion or belief, where it is reasonable to do so in order to maintain the religious ethos of the institution (i.e. maintains the status quo).
  • Then Subsection 1(b) places further specified restrictions on such institutions where they are maintained or assisted by recurring grants provided out of public funds (i.e. cannot also be discrimination on another ground; religion or belief is required having regard to the institution’s ethos; and action must be justified by a legitimate aim and proportionate means).

The Bill therefore starts with the most conservative implementation possible of the European Equality Directive 2000/78. The State avails of an option that it may allow certain limited discrimination to continue. It then seems to follow the restrictions on such discrimination that are outlined in the Directive, but does so in a way that still discriminates disproportionately against atheists. Also, in a sleight-of-hand, it only applies the new inadequate restrictions to State-funded bodies, and allows other bodies to continue to discriminate on the basis of the existing law (which contravenes the Directive).

Atheist Ireland argues that the State should move each of these subsections a step closer to equality. State-funded institutions should not be allowed to discriminate at all. Non-State-funded institutions should be allowed very limited exemptions to allow, for example, religions to employ clerics who share their beliefs, but this should not apply to primarily secular jobs such as teacher or doctor.

This is the briefing document that we have sent all Senators.

Dear Senator,

We are asking you to amend this Bill as follows:

1. Institutions that are State-funded should not be allowed to discriminate at all on the ground of religion or belief. The State should not fund religious discrimination against its own citizens.

2. Institutions that are not State-funded should be subject to restrictions of the kind the Bill places on State-funded bodies. These should allow, for example, religions to employ clerics who share their beliefs, but should not apply to secular jobs such as teacher, doctor or administration worker.

3. Based on the principles of the Equality Directive and EU law, and to protect equally the right to freedom of conscience and religion and belief of all citizens, the State has a duty to be neutral and impartial between religious and nonreligious philosophical beliefs. The Bill does not do this.

This Bill negates the whole point of equality law, by making some types of equality more equal than others. A gay atheist teacher could not be fired because of their sexuality, but they could be fired because of their belief. There should be no right to discriminate against a teacher based on either their sexuality or their belief. The Bill discriminates disproportionately against atheists, and is contrary to the Charter of Fundamental Rights of the European Union (see Appendix 1).

The advice given to Senators on Directive 2000/78 is inaccurate. The Directive does not require Member States to allow discrimination on the ground of religion or belief. Article 4 merely allows, not requires, Members States to do this in certain circumstances. And Article 8 explicitly allows Member States to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the Directive (See Appendix 2).

Therefore, whatever obstacles exist to a more robust approach to protecting equality, they do not come from this Directive. Also, under Article 4 of the Directive, if a Member State does avail of this option, any national Constitutional factors must be considered alongside the general principles of Community law. These include (See Appendices 3 and 4):

  • Any direct or indirect discrimination based on religion or belief should be prohibited throughout the Community;
  • The Union respects equally religious and nonreligious philosophical bodies, and secularism is a ‘philosophical conviction’ that must be respected;
  • Freedom of thought, conscience and religion is as precious to atheists, agnostics, skeptics and the unconcerned as it is to religious people;
  • Excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief.

The Irish Supreme Court examined the current law when the Employment Equality Bill 1996 was referred to it under Article 26 of the Constitution. The Supreme Court found that it was a reasonable balancing in legislation of the different rights involved, including, chiefly, the right to earn a living and the rights to freedom of religion and association. The Supreme Court found that the 1996 Bill was not repugnant to the Constitution. But this does not mean that it was required by the Constitution. Indeed, the very fact that this Bill is being considered shows that the current Act is not required by the Constitution. And whatever about the State allowing limited discrimination, the Constitution certainly does not require the State to fund such discrimination.

The Justice Minister is now concerned that, in practice, the current Act’s balance is not a fair one, and that in practice this provision can operate in a way that is unfair to LGBT persons. 1 He is correct, and it is also correct that, in practice, this provision can operate in a way that is unfair to atheists. This is so blindingly obvious that it is only ignored because we have been culturally conditioned to not notice the injustice involved. If there was an exemption allowing discrimination against gay people, and if anybody suggested keeping the exemption, but amending it so that it could only be used to discriminate against gay people but not also against atheists, you would immediately notice the injustice of such a suggestion.

Finally, this Bill does not even advance the legitimate aim that it is intended to have, and that is legally essential for discrimination to have legal legitimacy. The Supreme Court accepted that the exemptions were Constitutional, to enable religious bodies to protect the freedom of religion of their members through the ethos of their institutions. But in practice, it now undermines freedom of religion rather than protecting it, as it also discriminates against the many nominal Catholics who no longer share the beliefs of the Catholic Church. A 2012 MRBI poll found 78pc of Irish Catholics follow their own conscience rather than Church teaching when making moral decisions. A 2013 MRBI poll found just 34% of Catholics in Ireland go to Mass every week. An MRBI poll yesterday shows only 21% public opposition to gay marriage, which means most nominal Irish Catholics do not share the ethos of the Catholic Church and its institutions on this weathervane issue.

We believe, on considering the following alongside each other:

  • The Supreme Court’s Constitutional test of the 1996 law;
  • The general principles of Community law;
  • The requirements of Directive 2000/78;
  • The requirements of the Charter of Fundamental Rights;
  • The greater awareness in 2014 than there was in 1996 of the equal right to freedom of religion or belief of both religious and atheist citizens as individuals;

that the amendments that we have proposed above are an appropriate balancing of the various rights involved, and we ask you to support them.

Appendices:

1. This Bill discriminates disproportionately against atheists
2. Directive 78/2000 does not require discrimination exemptions
3. Relevant general principles of Community law
4. These principles also protect atheists and secularists

Appendix 1. This Bill discriminates disproportionately against atheists

1.1 The Bill essentially amends Section 37 as follows: Subsection 1(a) allows religious bodies, educational or medical institutions to discriminate on the ground of religion or belief, where it is reasonable to do so in order to maintain the religious ethos of the institution (i.e. maintains the status quo). Then Subsection 1(b) places further specified restrictions on such institutions where they are maintained or assisted by recurring grants provided out of public funds (i.e. cannot also be discrimination on another ground; religion or belief is required having regard to the institution’s ethos; and action must be justified by a legitimate aim and proportionate means).

1.2 The Bill therefore starts with the most conservative implementation possible of Directive 2000/78. The State avails of the option that it may allow certain limited discrimination. It then seems to follow the restrictions on such discrimination that are outlined in the Directive, but does so in a way that still discriminates disproportionately against atheists. Also, in a sleight-of-hand, it only applies the new inadequate restrictions to State-funded bodies, and allows other bodies to continue to discriminate on the basis of the existing law (which contravenes the Directive).

1.3 We argue that the State should move each of these subsections a step closer to equality. State-funded institutions should not be allowed to discriminate at all. Non-State-funded institutions should be allowed very limited exemptions to allow, for example, religions to employ clerics who share their beliefs, but this should not apply to primarily secular jobs such as teacher or doctor.

1.4 The discrimination allowed in this Bill is contrary to the Charter of Fundamental Rights of the European Union, which covers the Equality Directive as part of EU law.

The Preamble to the Charter states that the Union places the individual at the heart of its activities. These exemptions give priority to the ethos of institutions over the rights of citizens.
Article 52 states that any limitation on the exercise of the rights and freedoms recognised by this Charter must respect the essence of those rights and freedoms, and must be necessary and proportionate. This Bill does not respect the essence of the right to freedom of belief, and it discriminates disproportionately
Article 15 guarantees citizens the freedom to choose an occupation and right to engage in work. For atheists and secularists in Ireland, that right is severely limited as the majority of educational establishments in the country have a religious ethos.
Article  22 obliges the Union to respect religious diversity. These exemptions prevent this as the majority of schools come under one religious body and atheists and secularists (as well as religious minorities) must adhere to that ethos or risk dismissal.
Article 20 guarantees equality before the law, and Article 21 protects against religious discrimination. The exemptions do not protect the essence of the rights guaranteed under the Charter as they are not proportionate given the preponderance of schools that operate under a religious ethos in the country (Article 52.1).
The exemptions also severely restrict the right to freedom of thought, conscience and religion (Article 10), Freedom of Expression (Article 11) and Respect for Private and Family Life (Article 7) as atheists and secularists must hide their convictions in order to secure employment as a teacher. Access to employment for any atheist teacher dismissed in a school on the grounds of ethos is severely limited. The exemptions in the Directive were never meant to undermine fundamental freedoms, but that is what this Bill does.
Article 52.3 says where the Charter “contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

Appendix 2. Directive 2000/78 does not require discrimination exemptions

2.1 In the Seanad debate on 13 March 2013, Ivana Bacik twice stated that she would prefer a more robust approach, but that Senators had been advised that EU Directive 2000/78 requires a more conservative approach. The two relevant quotes about this advice were: 2

“We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with “loyalty to the organisation’s ethos”; and
“There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring “national practice as existing as the date of adoption of the directive”.”

2.2 This advice is based on a misreading of EU Directive 2000/78. Article 4 actually says that: 3

1. “Member States may provide that a difference of treatment… shall not constitute discrimination (in certain circumstances)”; and that
2. “Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive (in certain circumstances)”; and then that
“This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law”; and that
“This Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

2.3 So the Directive includes no obligation on Member State to protect the ethos of religious institutions at the expense of the rights of employees to equality. It allows that Member States may (not shall) by law allow certain existing discrimination to continue, and only if a member State chooses to do this, then certain consequences shall follow in conformity with those laws.

2.4 For further clarity, Article 8 makes clear that the Directive outlines minimum requirements, not maximum requirements, for protecting equality. It states that:

“1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.
2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.”

2.5 The UK negotiated an exemption to allow them to pass laws that discriminate on the ground of religion or belief in Northern Ireland, in order to tackle under-representation in the police, and to maintain a balance of opportunity for teachers. So, ironically, the UK has an exemption to maintain a balance of opportunity for teachers, while we seek to use another exemption to maintain an imbalance of opportunity for teachers. It is also worth noting that the UK’s legal team believed that, without this exemption, the Directive does not allow such discrimination. 4

Appendix 3. Some relevant general principles of Community law

3.1 Any direct or indirect discrimination based on religion or belief should be prohibited throughout the Community. The Preamble to Council Directive 2000/78 summarises the general principles of Community law that are relevant to the Directive. It states that: 5

“11. Discrimination based on religion or belief… may undermine the achievement of the objectives of the EC Treaty”; and
“12. To this end, any direct or indirect discrimination based on religion or belief… as regards the areas covered by this Directive should be prohibited throughout the Community.”

3.2 The State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom. Earlier this month, the European Court has stated that: 6

“29. Finally, in this connection, the Court recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. The State therefore has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs.”

3.3 The State cannot allow registered religious societies to have exemptions from employment equality law, while excluding a religious community that is not a registered religious society from having the same benefits. The European Court stated in 2012 that: 7

“37. The Court therefore concludes that section 1(2)(d) of the EA Act, which provides for exemptions from the scope of application of that Act in respect of the employment of aliens for pastoral work as part of a recognised religious society, is discriminatory and that the applicant community was discriminated against on the basis of religion as a result of the application of this provision. There has therefore been a violation of Article 14 taken in conjunction with Article 9 of the Convention.”

3.4 The State must protect the rights of individual citizens to education, but religious communities themselves do not have a right to education. This has obvious implications for the balancing of the rights of employees with the ethos of a school. The European Court stated in 2010 that: 8

“125. The Court reiterates that solely the members of a religious community, as individuals, can claim to be victims of a violation of the right to marry or the right to education, rights which by their nature are not susceptible of being exercised by a religious community itself. Therefore, the applicant churches as religious communities cannot themselves allege a violation of either of these rights.”

3.5 This Bill does not even advance the legitimate aim that it is intended to have, and that is legally essential for discrimination to have legal legitimacy. 9 The Irish Supreme Court accepted that the exemptions were Constitutional, to enable religious bodies to protect the freedom of religion of their members through the ethos of their institutions. But in practice, it now undermines freedom of religion rather than protecting it, as it also discriminates against the many nominal Catholics who no longer share the beliefs of the Catholic Church. A 2012 MRBI poll found 78pc of Irish Catholics follow their own conscience rather than Church teaching when making moral decisions. A 2013 MRBI poll found just 34% of Catholics in Ireland go to Mass every week. An MRBI poll yesterday shows only 21% public opposition to gay marriage, which means most nominal Irish Catholics do not share the ethos of the Catholic Church and its institutions on this weathervane issue.

Appendix 4. These principles also protect atheists and secularists

4.1 The State must apply these principles equally to religious and nonreligious philosophical beliefs. We in Ireland are only slowly beginning to realise that atheists and secularists have the same protection as religious believers with regard to these rights.

Article 17(2) of the Treaty on European Union states that:

“The Union equally respects the status under national law of philosophical and non-confessional organisations.”

4.2 The Preamble to Council Directive 2000/78 explicitly refers to freedom of religion or belief.

“11. Discrimination based on religion or belief… may undermine the achievement of the objectives of the EC Treaty”; and “12. To this end, any direct or indirect discrimination based on religion or belief… as regards the areas covered by this Directive should be prohibited throughout the Community.”

4.3 Specifically, secularism is a philosophical conviction that must be recognised and respected.

The European Court recognises that the “supporters of secularism are able to lay claim to views attaining the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1. 10

More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect ‘in a democratic society’”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education.” 11

4.4 Also, freedom of thought, conscience and religion is as precious an asset to atheists as it is to religious people. The European Court has stated that: 12

“31. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

4.5 Finally, excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief. The European Court has stated that: 13

“Furthermore, while it is important to ensure that representatives of religious communities are allowed to give input and advice, this should not be taken to the extreme of giving them too much decision-making power at the cost of abdicating state responsibility. The European Court of Human Rights has made it clear that excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief.”

Notes

1 http://www.justice.ie/en/JELR/Pages/SP13000077
2 Senator Ivana Bacik, 13 March 2013: “Frankly, however, the legislation is somewhat conservatively drafted. I would like to have gone further in the Bill, particularly in respect of the undermining of ethos provisions. We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with “loyalty to the organisation’s ethos”. I understand there is some suggestion that it requires a more conservative approach than is taken in the Bill. While it is radical in that it covers all the grounds of discrimination, I would personally favour a more robust approach to protect equality in the second aspect of the new section 37(1) which deals with the undermining of ethos. It is something that we could tease out on Committee Stage.”
Senator Ivana Bacik, 13 March 2013: “There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring “national practice as existing as the date of adoption of the directive”. However, we were perhaps over-cautious in the drafting of the Bill, particularly section 37(1), which refers to action taken to prevent undermining of the ethos.”
3 Article 4 of Directive 2000/78
1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
4 Article 15 of Directive 2000/78: Northern Ireland
1. In order to tackle the under-representation of one of the major religious communities in the police service of Northern Ireland, differences in treatment regarding recruitment into that service, including its support staff, shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation.
2. In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation.
5 Preamble of Directive 2000/78
11. Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.
12. To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.
6 Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, no 7552/09, 4 March 2014
7 Jehovas Zeugen in Österreich v. Austria, no 27540/05, 25 September 2012
8 Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 88, 9 December 2010
9 From Savez crkava “Riječ života” and Others v. Croatia: “86.The Court notes that it was not disputed between the parties that the applicant churches were treated differently from those religious communities which had concluded agreements on issues of common interest with the Government of Croatia, under section 9(1) of the Religious Communities Act. The Court sees no reason to hold otherwise. Accordingly, the only question for the Court to determine is whether the difference in treatment had “objective and reasonable justification”, that is, whether it pursued a “legitimate aim” and whether there was a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, for example, Oršuš and Others,cited above, §156).”
10 Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48
11 Lautsi v Italy (App No. 30814/06) 18th March 2011
12 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57827  para 31
13 Manoussakis v Greece (ECHR, 18748/91 1996) para 49-38 Toledo Guiding Principles p68

Michael Nugent