HHRJ

Harvard Human Rights Journal

Indirect religious discrimination: a European perspective

By

Indirect religious discrimination: a European perspective 

Christopher McCrudden*

 

  1. In this brief note on legal measures addressing indirect religious discrimination, I draw from the experience of the development and use of indirect religious discrimination in several European jurisdictions: the United Kingdom (including the somewhat different legal position in Northern Ireland), the European Union, and the European Convention on Human Rights (ECtHR). I do not address the use of indirect religious discrimination beyond these jurisdictions, and in particular I do not consider the approach taken in international human rights law under the United Nations Conventions.

 

Concepts

Some conceptual distinctions

 

  1. “By “indirect discrimination”, I mean the conception of unlawful discrimination that concentrates on the adverse effects of a policy or practice on a particular group, and assesses whether such adverse effects are otherwise justified. (Four examples, attached in an appendix to this note, illustrate the somewhat different ways in which indirect religious discrimination is addressed in these jurisdictions.)

 

  1. “Indirect discrimination” in those jurisdictions is a close relative of the “disparate effects” conception of discrimination developed in the United States in the Title VII context in the Griggs case,[1] and subsequently rejected for Equal Protection purposes in Washington v Davis.[2] “Indirect discrimination”, in those jurisdictions in which the term is used (including most common law and all EU states), is usually contrasted with “direct discrimination”, which is equivalent to “disparate treatment” discrimination in the United States. These comparisons bear a strong health warning. Although there is a close family resemblance, “indirect discrimination” is not the same as US “disparate effect”, just as “direct discrimination is not the same as US “disparate treatment”.

 

  1. By “religious discrimination”, I mean discrimination on the grounds of religious affiliation, but this trite definition camouflages a fundamental distinction between two identifiable types of “religious discrimination”, based on the different roles that religion plays in different societies. In the first, “religious discrimination” usually relates to a disadvantage that a religious person experiences in carrying out specified religious obligations; in this form, it is often associated with “belief”. An example: I (a nurse) am dismissed from my employment because I refuse to be involved in an abortion procedure due to my religious belief that carrying out abortions is wrong. In contrast, in some societies (Northern Ireland is an obvious example), religion is a marker of ethno-political differences and “religious discrimination” is much more similar to ethnic or racial discrimination. An example: I (an academic) am refused employment at a university in Belfast because I am Catholic.

 

  1. The distinction between these two types of indirect religious discrimination is not always clear, however; nor is the distinction between religious discrimination and ethnic discrimination. An example illustrates the point. In the JFS case,[3] a boy who claimed to be Jewish was excluded from a Jewish school; the school did not consider him to be Jewish because his mother was not Jewish by birth, and had not converted to Judaism according to Orthodox practice. The statutory provisions prohibiting discrimination contained an exception from religious discrimination for religious schools, but not from discrimination on grounds of ethnic origin. As a result, the boy successfully alleged discrimination on the grounds of his ethnic origins, not religious discrimination.

 

Variables

Relationship between claims of religious discrimination and claims of freedom of religion

 

  1. Turning now to the variables that appear to affect the role and function of “indirect religious discrimination”, we can identify, first, the extent to which the protection of freedom of religion (as distinct from religious discrimination) provides an attractive claim for applicants. As a rule of thumb, we can say that the more attractive the claim of freedom of religion from the perspective of the applicant, the less likely it is in practice that the applicant will resort to an indirect discrimination claim instead. Had the scope of Article 9 of the European Convention on Human rights (ECHR) in protecting freedom of religion not been considered so limiting, Ladele (to be considered in more detail below)[4] would not have been argued as an indirect discrimination claim under Article 14 of the ECHR.

 

  1. Arguments concerning the place of religion in the public or private spheres, are now frequently reframed as issues of “discrimination” and “equality”. This appears to be the result of at least two significant developments. The first is that legal practitioners now more frequently identify anti-discrimination arguments as providing ways of avoiding the uncertainties and limitations engendered by the jurisprudence on freedom of religion. The second is that the growth of equality and discrimination arguments generally, and the greater focus on the protection of various identities in particular, has brought to the fore the “identity” dimensions of religion.

 

  1. The similarities between freedom of religion and freedom from discrimination on the basis of religion are initially quite striking. There is, in particular, a degree of overlap between the interpretation of freedom of religion and the religious discrimination provisions in so far as freedom of religion itself encompasses an equality dimension. Indeed, one of the ways in which a breach of freedom of religion is proven is by pointing to more favorable treatment being accorded to another religion when, other things being equal, they should have been treated similarly. This intuition is captured in the ECHR through Article 14, the original intention of which was to provide that these substantive rights should not been delivered in a discriminatory manner.

 

  1. Beyond these similarities, however, textual differences emerge. In Article 9 of the ECHR, freedom of religion (along with thought, conscience, and belief) is singled out for special treatment, in the sense that freedom of religion has a particular provision that is devoted primarily to enunciating this freedom, whereas the provision prohibiting religious discrimination is a broader anti-discrimination provision addressing religion as well as other grounds for non-discrimination, including race, sex, etc. There is a second, more institutional difference – unlike the treatment of “freedom of religion”, freedom from religious discrimination has, in the past, often been the subject of detailed legal treatment in ordinary statute law, sometimes also being addressed through constitutional or human rights provisions.

 

  1. But is there anything fundamentally distinctive between these rights? Do the differences in drafting and institutional elaboration discussed above denote a significant substantive difference? Or do the two rights seek to do essentially the same thing? In short, does it matter whether an issue is presented as one of freedom of religion, or one of religious discrimination? I suggest that the differences between “freedom of religion” and “freedom from discrimination” are more fundamental than simply differences in drafting style, material scope, legal source, and limitations, however important these are in practice. Turning to the way in which these types of provisions have been judicially interpreted, several differences are noticeable between these provisions.

 

  1. First, the discrimination provisions are interpreted as being essentially comparative. The approach adopted to the interpretation of the religious discrimination provision emphasizes the nature of discrimination as involving the less favorable treatment of one person in comparison with another person, based on the differences in their religion, the approach being adopted by the Court in Ladele. The protections for freedom of religion, on the other hand, are not seen as essentially There can be a breach of a provision guaranteeing freedom of religion, irrespective of the same treatment being accorded (or not accorded) to adherents of all other religions, or, indeed, everyone else.  Freedom of religion, at least in theory, protects the holding of a belief of that religion and its manifestation on a non-comparative basis; someone complaining of a breach of freedom of religion does not need to complain that someone else has been treated more favorably.

 

  1. A second possible difference between freedom of religion and religious anti-discrimination approaches can be seen by using an analogy drawn from discrimination on the basis of sexual orientation. There has long been an important debate within the community of gay rights activists in Europe, as well as elsewhere, as to the appropriate strategy to be adopted in addressing the discriminatory treatment suffered by those who are homosexual or non-heterosexual. Essentially, the debate is between the competing approaches of the right to privacy and the right to equality; which among the two is the better approach? As is the case in LGBT litigation, a significant part of the appeal for litigants in using an argument based in freedom from religious discrimination is the opportunity it offers to benefit from similar affirmation of their status as religious persons, particularly when they operate in the public sphere, broadly defined. The opportunity to secure affirmation is notoriously more limited using freedom of religion. Not only is there an ambiguity as to whether the courts will apply a narrow “autonomy” approach, significantly limiting religion to the private sphere, there is also a focus on particular “conduct”, viz. the manifestation of a set of religious practices, rather than a protection of the status of being religious in the much broader range of circumstances covered by anti-discrimination law.

 

  1. The ECtHR has long had the practice of addressing scenarios that are capable of consideration under Article 9 alone, and Article 14 read with Article 9, as being better dealt with under Article 9 alone. The attempt in Ladele to break this practice was only partially successful, since the approach to margin of appreciation that was applied to questions of justification in an indirect discrimination context was the same as that which would have been applied if the issue had been considered under Article 9 alone. It looks like the same approach to justification generally will be applied to Article 9 claims and Article 14 indirect religious discrimination claims. The argument that the standard of justification should be more onerous because “religion” should be treated as similar to race, gender and sexual orientation in requiring a heavier burden of justification was not successful in Ladele, for reasons to be discussed subsequently.

 

Relationship between direct and indirect discrimination

 

  1. The relationship that exists in a particular jurisdiction between “indirect” and “direct” discrimination is a second important factor in determining the role that “indirect” discrimination plays. This relationship is important in different ways and can be summed up by asking three questions:
  • Are direct and indirect discrimination regarded, legally, as overlapping concepts, or are they regarded as separated to such a degree that they cannot overlap? In the United Kingdom, for example, the legal concepts of direct and indirect discrimination cannot overlap; an action is either direct discrimination or indirect discrimination – it cannot be both.[5]
  • To what extent does “direct discrimination”, in the particular jurisdiction concerned, go beyond a focus on “intentional” discrimination and cover also an action that is not calculated to discriminate on the prohibited ground but necessarily has that consequence? A UK sex discrimination case illustrates the issue: I, a local council, operate a practice of allowing those who are over the state pension age free swimming in the local municipally-owned swimming pool; the state pension age is 65 for men and 60 for women. Is this direct or indirect discrimination? In the UK, it is direct discrimination[6] not because the local council intended to discriminate against men, but because the council’s practice was, as a subsequent case put it, “indissociable”[7] from the protected ground.
  • Can direct discrimination be “justified”? One of the reasons why a claim of direct discrimination is more popular than a claim of indirect discrimination is because the grounds for rebutting the former are considerably narrower than for rebutting the latter. Whereas a prima facie case of indirect discrimination can be rebutted if it is established that the adverse impact was otherwise “justified” and “proportionate”, no such argument can be made (except under Article 14 of the ECHR) regarding direct discrimination. While there are exceptions to the coverage of direct discrimination, these are narrowly drafted and specific, rather than open and general as is the case with indirect discrimination. In jurisdictions where that is the case, then a claimant is more likely to want his or her case to be considered as a direct discrimination claim.

 

  1. The combination of these three features of the relationship between direct and indirect discrimination can have significant effects on whether and, if so, how indirect discrimination is deployed. So, for example, in the Ashers case,[8] in which a gay man, who requested a bakery to produce a cake decorated with the slogan “Support Gay Marriage” and was refused, the case was heard as a case of direct discrimination on the basis of sexual orientation. This failed on the basis that being gay and wanting a cake with that slogan were not “indissociably connected.” Had the case been run as one of indirect discrimination, a different result might have been achieved. It could not (legally) be both direct and indirect discrimination.

 

  1. The take-away point is that the broader the conception of direct religious discrimination, the less likely it is that litigants will choose to go down the route of alleging indirect discrimination, particularly where the choice is framed as either/or, rather than both/and. The choice is likely to be dictated not only by litigation strategy, but also (another important point) by the greater moral opprobrium that an established case of direct discrimination is thought to carry with it, compared with indirect discrimination. Indeed, in some jurisdictions, this greater moral opprobrium is reflected in the remedies that are available. In the UK, for example, damages are not available for indirect discrimination that is shown to have been unintentional.

 

Source and coverage of the prohibition on indirect religious discrimination

 

  1. We can distinguish, at the level of national jurisdictions, between prohibitions on indirect religious discrimination that are broadly “constitutional” and those prohibitions that are “statutory”. The difference is important in several respects.
  • If the source of the prohibition of religious discrimination is broadly “constitutional”, it is more likely that the origin of indirect religious discrimination in that jurisdiction will be judicial. There are relatively few examples in which there is a clear distinction drawn between direct and indirect discrimination at the constitutional level (South Africa is a notable exception), and in the bulk of jurisdictions indirect discrimination arrives in such jurisdictions as a result of judicial interpretation of broadly-framed prohibitions on “discrimination”. Where the origin of indirect religious discrimination is statutory, however, the tendency is (as seen above) for a more specific definition to be provided which narrows judicial discretion.
  • If the source of the prohibition of religious discrimination is broadly “constitutional” it is also likely to be primarily focused on preventing religious discrimination by public bodies; it is, in other words, more likely to have vertical rather than horizontal effects, and it is more likely to have a very broad coverage in the public sector; the development of indirect religious discrimination is therefore likely to be tailored to fit that context, as opposed to being developed in a context in which it will have horizontal effects on private sector bodies as well. Where the origin is statutory, however, the coverage is likely to be more closely defined, and focus on particular covered activities, such as employment, housing, etc, as in the examples provided above, each of which applies the prohibition to a limited range of specific practices.
  • The same points are apparent where the texts of international treaties do not distinguish between direct and indirect discrimination. So, in the context of Article 14 of the ECHR, indirect discrimination came through judicial interpretation, and applies vertically not horizontally, leading to significant uncertainty as to when it is likely to apply, and what are the consequences of applying it. For a claim of discrimination under Article 14 to succeed, an applicant must show that he or she was either (a) treated differently from other persons in analogous, or relevantly similar situations – equivalent to direct discrimination, or (b) treated similarly to persons in relevantly different situations – equivalent to indirect discrimination.
  • A good example of the ECtHR approach in practice is to be found in Ladele v Islington Borough Council.[9] Ladele was effectively dismissed from her position as a marriage registrar for refusing to carry out same-sex civil partnership ceremonies on religious grounds. Ms. Ladele’s claim arose under (b), i.e. she argued that she was treated similarly to other persons in relevantly different situations. In failing to treat Ms. Ladele differently from those staff who did not have a conscientious objection to registering civil partnerships, she argued that the local authority failed “to treat differently persons whose situations are significantly different”, as the Court put it in Thlimmenos v Greece,[10] which has often been seen as having introduced the idea of “indirect” discrimination into ECHR jurisprudence. The Court agreed that she had correctly identified the relevant comparators, holding that the “relevant comparator in this case is a registrar with no religious objection to same sex unions.”  The Court further agreed that failing to treat her differently from those staff meant that the local authority failed “to treat differently persons whose situations are significantly different”. The Court agreed with the applicant’s contention “that the local authority’s requirement that all registrars … be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs,” and therefore constituted a prima facie case of indirect discrimination under Article 14.

 

Proof of indirect discrimination

 

  1. In none of the jurisdictions with which I deal (ECHR, EU, Northern Ireland, and Great Britain), is the presentation of statistical evidence necessary in order to establish indirect discrimination, although in all these jurisdictions such evidence is admissible where it is available. In the European context, there would be significant difficulties in requiring indirect discrimination on grounds of race, ethnicity, or religion to be established through the use of statistical evidence, not only because such evidence is simply not available in many jurisdictions, but also because the collection of such information is sometimes subject to significant legal restrictions in some jurisdictions or is outright prohibited in others, such as in France.

 

  1. In all these jurisdictions a key element concerns the definition of the “religious group” with which the applicant seeks to identify, and the comparator group which the applicant claims is more favourably treated. In none of the jurisdictions would it be mandatory to establish that the particular organized religion that the applicant identified with considered it an obligation to do or not to do what the applicant wishes to do or not to do, but it would be necessary for the applicant to define carefully the definition of the group, and that the reason was in some way connected to religious affiliation.

 

Relationship between indirect religious discrimination and positive equality duties

 

  1. In some jurisdictions the importance of indirect religious discrimination is somewhat lessened in practice where there is a legal mechanism in place that imposes on some actors a more general duty to secure “equality” or “equality of opportunity”. In these contexts, the duty goes well beyond most prohibitions on indirect religious discrimination in two respects: first, in shifting from a negative obligation (“do not discriminate”) to a positive obligation (promote “equality”); second, in shifting from a focus on discrimination to a focus on equality (where “equality” is a broader, more encompassing, goal). In Northern Ireland, there is a broad positive obligation on the public sector to pay “due regard” to the need to promote “equality of opportunity” between (inter alia) persons of different religious beliefs. This goes well beyond an obligation to refrain from indirectly discriminating on the grounds of religion.

 

Justification standard in indirect discrimination

 

  1. In the jurisdictions with which this note is primarily concerned, a prima facie case of indirect discrimination is subject to being rebutted. This justification test has varied over the years, but has now, broadly, coalesced around a proportionality test of a classic kind. This is often formulated in different ways, but can be seen as comprising a core approach, according to which the adverse impact can be rebutted if it can be shown that the practice causing the adverse impact is intended to pursue a legitimate aim, that there is a nexus between the contested practice and the legitimate aim, that other less adverse practices could not have achieved that legitimate aim, and that it was otherwise reasonable to adopt the practice. Whilst the proportionality test is intended to place an onus on the alleged discriminator to justify his or her practice, the test says little about the intensity of scrutiny engaged in by the court assessing the contested practice. In practice, the intensity of scrutiny varies considerably from jurisdiction to jurisdiction, making an accurate prediction as to the outcome close to impossible.

 

  1. The ECtHR has considered the justification issue extensively in SAS v France[11] under freedom of religion. The issue was whether a ban on the wearing of a full-face veil was contrary to the ECHR. The Court held that France was justified in imposing such a ban on the grounds that there is a requirement on all in society to engage in public with others, an obligation which cannot be sustained if the face is fully covered. The interesting issue that arises is whether an indirect discrimination claim under the EU’s Directive would have succeeded.

 

  1. To answer that question, it is necessary to consider carefully a case decided by the Court of Justice of the European Union. In C‐157/15, Achbita.[12] The case concerns G4S’ dismissal of A. because of her refusal to remove her Islamic headscarf. A., a Muslim, was employed by G4S at a time when the company had an unwritten rule that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. Several years later G4S approved the rule. After this, A. was dismissed because she refused to comply with the rule not to wear the Islamic headscarf at work. The Court concluded that the prohibition of wearing an Islamic headscarf does not constitute direct discrimination based on religion or belief within the meaning of the directive. The rule treated all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally. It was not evident from the material available to the Court that that the internal rule was applied differently to A. as compared to other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive.

 

  1. However, it is pertinent to note that the Court left open the question whether her dismissal constituted indirect discrimination under the Directive. It is observed that “in the present case, it is not inconceivable that … the internal rule at issue in the main proceedings introduces a difference of treatment that is indirectly based on religion or belief, … if it is established — which it is for the referring court to ascertain — that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.”[13] The Court emphasised, however, that “such a difference of treatment does not, however, amount to indirect discrimination … if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.”[14] Although, said the Court, it is “ultimately” for the national court, “which has sole jurisdiction to assess the facts and to determine whether and to what extent the internal rule at issue in the main proceedings meets those requirements”.[15] But the Court of Justice is, nevertheless, “called on to provide answers that are of use to the national court, [and] may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment in the particular case pending before it.”[16] This is what it then proceeds to do, particularly as regards assessing the proportionality of the prohibition.

 

  1. The Court applies the classic approach to proportionality, considering, first, the legitimacy of the aim pursued. The Court acknowledges “that the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate.”[17] However, the Court implicitly limits the type of employees who could legitimately be included within the scope of the policy: “An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business … and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.”[18]

 

  1. The Court considers next the appropriateness of an internal rule such as that imposed by the employer here in furthering this aim, and considers that “the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner …”[19] In that respect, says the Court, “it is for the referring court to ascertain whether G4S had, prior to A.’s dismissal, established a general and undifferentiated policy of prohibiting the visible wearing of signs of political, philosophical or religious beliefs in respect of members of its staff who come into contact with its customers.”[20]

 

  1. Turning, then to the third element in the proportionality test, whether the prohibition at issue was necessary, the Court states that “it must be determined whether the prohibition is limited to what is strictly necessary. In the present case, what must be ascertained is whether the prohibition on the visible wearing of any sign or clothing capable of being associated with a religious faith or a political or philosophical belief covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.”[21] In that context, the Court goes on, in a critically important move, to query whether G4S could have reasonably accommodated A.’s desire to wear the Islamic headscarf, instead of dismissing her: “it is for the referring court to ascertain whether, taking into account the inherent constraints to which the undertaking is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S, faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her. It is for the referring court, having regard to all the material in the file, to take into account the interests involved in the case and to limit the restrictions on the freedoms concerned to what is strictly necessary.”[22]

 

Is the prohibition of (indirect) religious discrimination the ugly duckling of anti-discrimination law?

 

  1. How far, if at all, are courts willing to see religion as truly analogous to other grounds that they regard as appropriately protected by anti-discrimination law, such as race, or gender, or sexual orientation? [23] Or how far do the courts, instead, consider that prohibitions of religious discrimination are outside the mainstream of anti-discrimination law, and see such prohibitions as an extension of freedom of religion? Attempting to isolate a principled reason why some groups are protected from being discriminated against and others not, brings us face to face with a major unresolved issue in anti-discrimination law theory: what is it that anti-discrimination law is attempting to do, and to what extent do prohibitions of religious discrimination fit that telos?

 

  1. If the interpretation by British courts of prohibitions on religious discrimination is any basis for predicting future trends elsewhere, including in the ECtHR, anti-discrimination norms in the context of religion will be seen as simply another way of putting the freedom of religion approach into practice, and therefore as something of an anomaly in the sphere of equality law. So, in recent British cases, for example, the anti-discrimination provisions dealing with religion have been interpreted as encapsulating a choice-based approach borrowed directly from freedom of religion rather than an identity-based approach borrowed from race cases. So too, the provisions are interpreted as encapsulating a view that religion is a private matter rather than a public matter, again borrowing directly from freedom of religion; and as focused on conduct rather than identity, again borrowed directly from freedom of religion. What seems to emerge from what is, admittedly, still a somewhat patchy jurisprudence is an approach that seeks to distance religious equality from all the other types of status equality, and to relegate religious equality to become simply another variant of freedom of religion, and therefore subject to the same type of constraints as freedom of religion.

 

  1. This emerging approach, if such it is, seems to be in part due to the structure of Article 14 itself. As we have seen in the discussion of Ladele, Article 14 is parasitic on other rights enumerated in the Convention, meaning that the Court has determined that Article 14 does not come into play unless the case raises an issue that is at least “within the ambit”[24] of another Convention right. The early jurisprudence of the Court of Human Rights generally viewed the function of Article 14 as peripheral and subsidiary to the other substantive rights. Indeed, the Court in this early phase seems to have regarded the role of Article 14 as essentially a way of ensuring that the fundamental right in issue was more widely distributed, rather than being important in its own right. This is an important reason why, in so many early cases, an Article 14 claim was not decided on its merits after it was found that that another substantive right had been breached – Article 14 was not thought to bring anything additional to the table. In the context of litigation involving a claim of religious discrimination, a classic move was to argue that the case raised issues within the ambit of Article 9 on freedom of religion, rather than some other Article, and thus the scene was set for Article 9 to become the dominant focus of attention, replacing the Article 14 discrimination issue.

 

  1. The approach that regards Article 14 as subsidiary and peripheral has more recently been significantly modified, and eradicating certain types of status inequality is often now seen as a worthy goal in itself. This approach has come to dominate the adjudication of claims based on race, gender, and sexual orientation. These grounds (and some others) are considered by the Court to merit a particularly high degree of protection because adverse treatment based on these grounds is thought to merit particular condemnation. In these cases, the function of Article 14 is not to act as merely ancillary to the other substantive rights but to take on a role in protecting individuals from particular types of status discrimination. When engaging with discrimination on these grounds, the Court now interprets Article 14 in ways much more similar to the classic statutory anti-discrimination law provisions in domestic law, such as those prohibiting racial and gender discrimination. In the ECtHR, when an Article 14 claim engages this set of grounds (race, gender, etc.) there is a clear “restriction in the national margin of appreciation”.

 

  1. Again, this approach is not absent from Article 14 jurisprudence engaging with religious discrimination. In several cases the Court has interpreted Article 14 read with Article 9 in somewhat similar ways, in particular where it would appear from the facts of the case that the power of the state was being used to allow one religion to dominate another. Thus, the well-known prejudice against non-Orthodox churches in Greece, and Jehovah’s Witnesses more generally, has led the Court to identify these religions as, effectively, “minorities” and thus subject to greater protection. In these contexts, where heightened scrutiny is required, the Court is also more likely to impose a positive obligation on the state to protect these minority religions from non-state actors, and impose an obligation of reasonable accommodation on the state. Where the Court does not view the religious anti-discrimination claim as involving, in effect, a claim to disadvantaged minority group status, the Court does not appear to be willing to grant the claimant membership of a “suspect category”, and is anxious to allow to states a wide margin of appreciation. The Court’s approach, therefore, is very context driven. That is why we have cases such as Ladele, in which the Court appears to understand the telos of the religious discrimination provision as the same (or very similar) to that of freedom of religion and thus, crucially, bringing the same limitations into anti-discrimination law as occurs in freedom of religion.

 

  1. Why the unease in applying a straightforward anti-discrimination approach? Two possibilities come to mind. First, the unacceptability of some religious beliefs might be thought to be sufficient in itself to distinguish the ground of “religion and belief” from other protected characteristics, and this may lead courts to push religious discrimination claims back to the safer shores of freedom of religion where there is more experience of dealing with bigoted religions. Gwyneth Pitt, for example, argues that unlike other protected grounds, which “express a consensus about particular values of equality and the irrelevance of certain characteristics,” the protection of religion and belief “potentially provides protection for the holders of completely abhorrent, or irrational, or bigoted beliefs, including those which would certainly not accord equal rights to others if they were to prevail”, and that this “highlights a difference between the religion or belief ground compared with other protected grounds.”[25]

 

  1. Courts may interpret the prohibitions on religious discrimination in what they consider to be a very different context from that in which they interpret the laws prohibiting racial or gender discrimination. Up to this point, they have become used to seeing religious discrimination primarily in an ethnic minority context, and seem to have considerable difficulty in accepting that religious identity is a status that is to be protected irrespective of whether that religious identity is connected with a minority ethnic identity or not. In addition, even when the religious discrimination claim does arise from a community that is a minority ethnic community, the claim to protection is met with a post-multicultural skepticism, particularly where any whiff of illiberalism in the religious practices of that group is perceived to be operating.

 

  1. If this is what is going on, then it would seem that, in the long run, the language and claims of nondiscrimination and equality may be of greater harm than help to religious claimants. Equality language and anti-discrimination claims bear the impression of certain core progressive commitments that do not sit at all easily with the views of some religious believers. But it is contrary to the state’s (and the Court’s) duty of neutrality and impartiality to allow the state (or the Court) to assess the legitimacy of a system of religious beliefs, or the way in which those beliefs are expressed, and the Court is more likely to prefer dealing with the problem in another way, such as viewing the claim through the narrower lens of freedom of religion.

 

  1. A second possible explanation for the unease in treating religious discrimination claims as on a par with claims of discrimination on other grounds (except where such claims are closely related to racial and ethnic discrimination) may be because of the wider implications of doing so. Perhaps sensing that they are likely to get into highly problematic waters if religious discrimination litigation becomes widespread, the ECtHR has avoided these future problems by invoking the margin of appreciation, thus leaving the issue to the national authorities. The Grand Chamber adopted a similar approach in Lautsi,[26] the case dealing with the display of the crucifix in Italian public school classrooms.  One way of interpreting such decisions is to view the Court as according to European states considerable discretion to weigh religious values according to their own criteria of evaluation, thus giving discretion to states also as to how to deal with the problem, and allowing to Court in particular to avoid dealing with the highly sensitive issue of established (or quasi-established) religions in many states.

 

 

Appendix

Some example of the statutory drafting of indirect religious discrimination 

The (British) Equality Act 2010, section 19 defines indirect discrimination as follows: A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. For [these] purposes …, a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—A applies, or would apply, it to persons with whom B does not share the characteristic, it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, it puts, or would put, B at that disadvantage, and A cannot show it to be a proportionate means of achieving a legitimate aim. The relevant protected characteristics are— age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation. This Act does not apply in Northern Ireland.

 

The Fair Employment and Treatment (Northern Ireland) Order 1998, section 3 defines indirect discrimination on the ground of religious belief (and political opinion) as follows: A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if— … he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and which is to the detriment of that other because he cannot comply with it.

 

The (European Union) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation prohibits direct and indirect discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. It provides, in Article 2, that indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief … at a particular disadvantage compared with other persons unless: that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

 

The European Convention on Human Rights, Article 14, provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

 

——————————————————————

* FBA, MRIA. Professor of Human Rights and Equality Law, Queen’s University, Belfast; William W Cook Global Professor of Law, Michigan Law School.

[1] Griggs v Duke Power Co, 401 U.S. 424 (1971).

[2] Washington v Davis, 426 U.S. 229 (1976).

[3] R. (on the application of E) v Governing Body of JFS, et al. [2009] UKSC 15.

[4] Eweida v United Kingdom (2013) 57 EHRR 8.

[5] R. (on the application of E) v Governing Body of JFS, et al. [2009] UKSC 15, at [57] (Lady Hale).

[6] James v Eastleigh Borough Council [1990] ICR 554.

[7] Bull v Hall [2013] UKSC 73, at [29] (Lady Hale).

[8] Lee v Ashers Baking Co. [2018] UKSC 49, at [25] (Lady Hale).

[9] Eweida, supra Note 4.

[10] Thlimmenos v Greece (2001) 31 EHRR 15.

[11] SAS v France, (2015) 50 EHRR 11.

[12] C‐157/15, Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, ECLI:EU:C:2017:203 (“Achbita”).

[13] Achbita, supra Note 12,

[14] Ibid., at [35].

[15] Ibid., at [36].

[16] Ibid.

[17] Ibid., at [37].

[18] Ibid., at [38].

[19] Ibid., at [40].

[20] Ibid., at [41].

[21] Ibid., at [42].

[22] Ibid., at [43].

[23] For a more detailed discussion, see Christopher McCrudden, Litigating Religions: An Essay on Human Rights, Courts and Beliefs (OUP, 2018).

[24] Belgian Linguistics case (No. 2) (1968) 1 EHRR 252, [9]-[10].

[25] Gwyneth Pitt, Religion or belief: aiming at the right target, in Helen Meenan (ed), Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (CUP, 2007), 202 at 213.

[26] Lautsi v Italy, (2012) 54 EHRR 3.