Considering how many talking points in the 2012 election have had to do with religion (Romney’s Mormonism, the morality of the Ryan budget, and Christian views on abortion and gay marriage) it’s easy to forget that in some countries, religion and party-politics are considered a private matter, not to be discussed in polite society.
The United Kingdom is one of these countries; in the land of tea and crumpets, discussing politics or religion at dinner parties is considered cheeky. And so it is surprising that religious liberties in the workplace have been brought center stage by four of Her Majesty’s subjects.
CNN’s Belief Blog brought my attention to Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, who allege that they were each reprimanded at work for upholding their religious beliefs. After losing on appeal in British courts, their cases were heard by the European Court of Human Rights (ECHR) on September 4. A decision could take months.
Both Ms. Eweida, a nurse, and Ms. Chaplin, a flight attendant for British Airways, wore necklaces with hanging crosses to work, were told to take them off, and refused. Ms. Eweida was suspended; Ms. Chaplin was forced into early retirement.
Ms. Ladele and Mr. McFarlane both had government jobs. Ms. Ladele was a registrar who was disciplined for refusing to process civil unions involving same-sex couples. Mr. McFarlane, who has been spearheading the legal process for all four of these cases with the support of the Christian Legal Centre, was a couples counselor paid by the National Health Service. He was fired after telling his superior that because of his Christian faith he was not willing to work with same-sex couples on sex related issues.
How would their cases fare in the U.S.? How will their cases actually fare in Europe? LASIS investigates.
A word about why the European Court heard an English case involving English people, in the first place. Britain, along with 27 continental neighbors, forms part of the European Union by giving up select parts of its sovereignty to the European government, much like our 50 states vis-à-vis our federal government. An ECHR decision will have the effect of a binding court order within Britain.
Stateside, Title VII of the Civil Rights Act of 1964 protects employees of both public and private institutions against religious discrimination in the workplace. The Act set up the Equal Employment Opportunity Commission, which evaluates discrimination claims and allows people a means to litigate them. So far, this sounds pretty similar to Britain’s employment tribunal — where our litigants lost their case.
Our Civil Rights Act states that employers must give their employees “reasonable accommodation” for their religious needs. A 2001 U.S. Court of Appeals case echoed a 1975 U.S. Court of Appeals case, and defined the reasonable accommodation standard. In the 2001 case, a police officer sued the department after being fired for not complying with uniform rules prohibiting him from wearing a gold cross pin on his shirt. He lost.
In these important cases, our courts have said that to prevail in a workplace religious discrimination case, an employee must show three things: First, that a religious belief conflicted with a work requirement; second, that the employee informed her employer of this conflict; and third, that the employee was not given reasonable accommodation and was then dismissed or sanctioned in some way.
The employer has two possible defenses. She can show that she actually offered the employee a reasonable accommodation or that after trying, no reasonable accommodation was available that wouldn’t cause the employer “undue hardship.” This “undue hardship” would constitute outlaying more than a minimal amount of money, or risking the health and safety of the workplace.
In 2004, a Christian employee was asked to sign a new diversity policy that included a provision mandating respect for homosexual co-workers. The employee considered such a requirement to be contrary to his beliefs and refused to sign – he was fired, and sued in Colorado district court on the grounds of religious discrimination. He won, with the court deciding that so long as his actions and statements were nondiscriminatory, his personal beliefs, even illogical or meanspirited ones, are protected under the law.
But for the most part, U.S. courts have dodged how we should balance individual rights to freedom of religion and the exercise of those rights sometimes being discriminatory.
In a 2012 U.S. Court of Appeals case a counselor working for a government agency was dismissed after refusing to work with same-sex couples and making her religious views clear to a woman she was paid to help. The court didn’t rule whether or not the employee’s actions were discriminatory; it simply stated that her actions did not conform to her professional standards as a licensed counselor
In the opinion of Michael J. Broyde, a law professor and senior fellow of Emory’s Center for the Study of Law and Religion, creating a discrimination exception for religious beliefs would be a “bad idea.” He believes that it would serve as a get-out-of-jail-free card for people to discriminate in the name of religion.
Organizations like the ACLU agree, and have been trying to draw the courts’ attention to this issue for years now. Many of the cases they are supporting (on the opposite side of McFarlane and the Christian Legal Centre) are still in litigation and will continue to be for some time. We can only guess as to when or how the courts will decide.
Cross-wearers Ms. Eweida and Ms. Chaplin might not like what our courts have to say on religious symbols added to uniforms of any kind. Like the British tribunal, our courts would probably not uphold the women’s right to wear crosses while at work especially if, as the defendants in these cases maintain, it was a safety issue: no hanging necklaces are allowed for either nurses or flight attendants.
As for Ms. Ladele and Mr. McFarlane, the government workers who refuse to work with same sex couples, we can probably call this one a toss-up both in the ECHR and in our own courts.
Last year, LASIS did a story about this very issue. A government worker refused to marry same sex couples. Lots of protests. But she maintained that she was just following her religious beliefs. She was reelected.
This particular area of law is still developing and the next few years on both sides of the pond should make for interesting dinner-party conversations.
EDITOR’S NOTE: An astute reader points out that the European Union’s court is the European Court of Justice. The European Court of Human Rights is part of the Council of Europe.
This blog originally appeared in New York Law School’s Program in Law and Journalism blog, Legal As She Is Spoke, on September 29, 2012. Reprinted with permission.
About the Author: José Ortiz (JD Class 2014) is a graduate of the University of Puerto Rico where he majored in Political Science. He is a classically trained pianist, organist and singer having performed with the San Juan Philharmonic Chorale and the Puerto Rico Symphony Orchestra. Other than music and law, he also enjoys heated political debate and the Yankees.