Religious Discrimination At Work: Tin Employees Live On Fired For Getting Divorced?

Ronan McCrea, Professor of Constitutional together with European Law at University College London

The Framework Directive on Discrimination inwards Employment came into forcefulness inwards 2003 but it took fourteen years for the Court of Justice to number its kickoff major conclusion on its religion-related provisions. However, nosotros guide hold at nowadays had iv major decisions inwards the finally twelvemonth together with a one-half together with then the precise impact of the Directive’s religion-related provisions is at nowadays becoming clear.

We at nowadays know that a consistently-applied neutrality requirement that prevents employees wearing symbols of organized religious belief or belief at piece of work volition survive considered to survive indirectly, non straight discriminatory (the Achbita case), that the courtroom takes a narrow persuasion of what counts as a genuine together with determining occupational requirement justifying direct discrimination on religious grounds (Bougnaoui together with Egenberger cases) together with that the mightiness of religious employers to bound roles to co-religionists inwards guild to protect their ethos was discipline to a proportionality seek (the Egenberger  case.) (On Achbita together with Bougnaoui, encounter word here; on Egenberger, encounter previous word on this weblog here)

The latest judgment, inwards the instance of IR v JQ addressed the affair of discrimination on grounds of organized religious belief addressed past times the Court inwards Egenberger, but also covered the finally major outstanding number inwards relation to the religion-related provisions of the Directive; the ambit for those employers, termed organisations ‘the ethos of which is based on organized religious belief or belief’ past times the Directive, to impose an obligation on their employees to ship alongside loyalty towards the religious ethos of their employer.

However, it did together with then inwards a slightly odd way because inwards this instance the employee inwards query contested the fact that he had been placed nether a greater duty of loyalty to his employer’s ethos because he belonged to the same faith as his employers. In other words, he alleged that the obligation of loyalty had been applied to him inwards a discriminatory way rather than simply alleging that an excessive obligation had been imposed.

In this instance the employee, ‘JQ’, was the caput of internal medicine inwards a infirmary run past times ‘IR’. IR is a not-for-profit, Catholic organisation that runs a number of organisations including hospitals as component of what the Court of Justice called ‘an appear of the life together with nature of the Roman Catholic Church’. JQ is a Roman Catholic. He was married inwards a Roman Catholic ceremony but divorced inwards early on 2008. He after married a novel partner inwards civil ceremony. When his employer became aware of this he was fired from his send service inwards March 2009.

His quondam employer argued that the dismissal of JQ was justified because past times remarrying, he had breached the duty (contained inwards his contract) to survive loyal to the ethos of the Catholic Church. JQ argued that his dismissal amounted to impermissible discrimination on the dry soil that an employee who was non a Catholic would non guide hold been fired for entering into a instant marriage.

EU police clit does permit (but does non require) Member States keep inwards forcefulness exemptions from the duty non to discriminate. Article 4(2) of the Directive states: 

‘…. inwards the instance of occupational activities inside churches together with other populace or private organisations the ethos of which is based on organized religious belief or belief, a departure of handling based on a person's organized religious belief or belief shall non constitute discrimination where, past times ground of the nature of these activities or of the context inwards which they are carried out, a person's organized religious belief or belief constitute a genuine, legitimate together with justified occupational requirement, having regard to the organisation's ethos. This departure of handling shall survive implemented taking business organisation human relationship of Member States' constitutional provisions together with principles, as good as the full general principles of Community law, together with should non justify discrimination on around other ground.’ 

  

The key number inwards the reference was whether the ambit of the exemption from the duty non to discriminate on grounds of organized religious belief or belief granted past times High German police clit to religious organisations was compatible alongside Directive 2000/78. JQ’s Catholic employers believed it necessary to house employees alongside managerial roles who shared their Catholic faith nether a greater obligation of loyalty than that placed on non-Catholic employers. High German police clit implementing Directive 2000/78 provides them alongside important ambit to create so. It provides that:

  

‘The prohibition of a departure of handling on grounds of organized religious belief or belief shall non touching on the right of the religious communities mentioned inwards subparagraph 1, institutions affiliated to them, regardless of their legal form, or associations that devote themselves to the communal rear of a organized religious belief or belief, to require their employees to human activeness inwards expert faith together with alongside loyalty inwards accordance alongside their self-perception.’(paragraph 9(2) of the Allgemeine Gleichbehandlungsgesetz,)

This legislation has been interpreted inwards the lite of the High German constitutional guarantee that states: 

‘Religious societies shall regulate together with administer their affairs independently inside the limits of the police clit that applies to all. They shall confer their offices without the interest of key regime or local authorities.’ (Grundgesetz Article 140).

The High German courts guide hold consistently taken the approach that, inwards the lite of this constitutional guarantee of self-determination, religious institutions may create upward one's heed inwards accordance alongside their ain faith-defined self-perception what is necessary to fulfil their religious mission. This way that religious employers may themselves definitively determine (subject alone to plausibility review past times the courts) what constitutes acting ‘in expert faith together with alongside loyalty to the ethos of the organisation’ inside the pregnant of Article 4(2) of the Directive.

The litigation betwixt JQ together with IR spent several years moving betwixt diverse levels of the High German courtroom scheme (including a hearing earlier the Bundesverfassungsgericht (Federal Constitutional Court) which did non refer the affair to the Court of Justice).

When it came earlier the Bundesarbeitsgericht (Federal Labour Court) for the instant time, the courtroom decided to brand a reference to the Court of Justice nether Article 267 inwards guild to ascertain whether the broad ambit granted past times High German police clit to religious employers to determine the ambit of the duty of employees to survive loyal to the employers’ ethos was compatible the provisions of Article 4(2) of the Directive. In particular, the national courtroom wanted to know whether a religious employer of a detail faith was entitled to apply a to a greater extent than stringent duty of loyalty inwards honor of employees who are also members of the faith than is applied to those who are of a dissimilar organized religious belief or of no religion.

The Court found that High German police clit provided excessive ambit to religious employers inwards this regard. This was non surprising as the Court of Justice had lately come upward to the a similar conclusion inwards the Egenberger instance where a non-religious adult woman had been denied a chore inwards a Protestant foundation.

In that case, the Court of Justice ruled that a conclusion past times a religious employer to discriminate against an private on grounds of their organized religious belief must satisfy a proportionality test. This seek included an obligation on the religious employer to demo that discriminating on grounds of organized religious belief was necessary because of the importance of the chore inwards query for ‘the manifestation of the religious body’s ethos or its right of autonomy’.

In addition, the Egenberger ruling stressed that the right to effective judicial protection nether Article 47 of the Charter of Fundamental Rights meant that an employee claiming to survive the victim of discrimination must survive able to competitor whether such discrimination complied alongside the tests of genuineness, necessity together with justification earlier national courts. Compliance alongside such tests could non survive decided definitively past times the religious trunk itself, something which goes against the High German approach of allowing the self-perception of the religious establishment to determine this issue, discipline alone to plausibility review past times the courts.

The Egenberger ruling thence made it clear that discriminatory decisions past times employers must survive discipline to objective justification, including compliance alongside a proportionality seek (rather than the self-perception of the religious body) as good as existence contestable earlier an independent court.

The key query inwards JQ v IR was whether the principles outlined inwards Egenberger past times the Court of Justice for dealing alongside cases of less favourable handling on grounds of organized religious belief inwards general, would also apply when the less favourable handling related to the imposition of an obligation of loyalty towards the ethos of the employer. Unsurprisingly, the Court held that the same principles apply together with held that where an employee has been accorded less favourable handling on business organisation human relationship of his organized religious belief (in this instance past times requiring greater loyalty to the employer’s Catholic ethos from Catholic employees), such discrimination must comply alongside a proportionality seek together with that compliance must survive capable of existence assessed past times an independent court, non the religious trunk itself. It noted that the mightiness of employers to impose a duty ‘to human activeness inwards expert faith together with alongside loyalty to organisation’s ethos’, provided past times Article 4(2) is discipline to the proviso that this duty tin survive imposed alone ‘provided that [the Directive’s] provisions are otherwise complied with’.

This way that the lawfulness of a departure inwards handling depends non on the self-perception of the employer but:

‘on the objectively verifiable existence of a direct link betwixt the occupational requirement imposed past times the employer together with the activity concerned. Such a link may arise either as a outcome of the nature of the activity, for instance where it involves taking component inwards the determination of the ethos of the church building or organisation inwards query or contributing to its evangelising mission, or of the circumstances inwards which the activity is to survive carried out, for instance, where it is necessary to ensure that the church building or organisation is presented inwards a credible fashion to the exterior world’

In add-on the departure inwards handling must survive shown to survive genuine, legitimate together with justified. In this regard, the Court reiterated its ruling inwards Egenberger that:

‘”genuine” way that professing the organized religious belief or belief on which the ethos of the church building or organisation is founded must survive necessary because of the importance of the occupational activity inwards query for the advertisement of that ethos or the practise past times the church building or organisation of its right of autonomy, as recognised past times Article 17 TFEU together with Article 10 of the Charter’

‘”legitimate” shows that the European Union legislature intended to ensure that the requirement of professing the organized religious belief or belief on which the ethos of the church building or organisation is founded is non used to pursue an aim that has no connecter alongside that ethos or alongside the practise past times the church building or organisation of its right of autonomy’

‘”justified” implies non alone that a national courtroom tin review whether the criteria set downwards inwards Article 4(2) of Directive 2000/78 are existence complied with, but also that the church building or organisation imposing the occupational requirement is obliged to show, inwards the lite of the factual circumstances of the private case, that the alleged adventure of undermining its ethos or its right of autonomy is in all probability together with substantial, together with then that the imposition of such a requirement is necessary’.

This way that the imposition of a greater duty of loyalty on Catholic employees alone survive justified if ‘bearing inwards heed the nature of the occupational activities concerned or the context inwards which they are carried out, the organized religious belief or belief is a genuine, legitimate together with justified occupational requirement inwards the lite of that ethos’.

While it acknowledged that it was ultimately for the national courtroom to attain a conclusion on the facts, the Court of Justice gave a strong steer to the national courtroom noting that:

‘Adherence to that notion of matrimony does non appear to survive necessary for the advertisement of IR’s ethos, bearing inwards heed the occupational activities carried out past times JQ, namely the provision of medical advice together with attention inwards a infirmary setting together with the management of the internal medicine subdivision which he headed. Therefore, it does non appear to survive a genuine requirement of that occupational activity inside the pregnant of the kickoff subparagraph of Article 4(2) of Directive 2000/78’

And that:

‘that positions of medical responsibleness entailing managerial duties, similar to that occupied past times JQ, were entrusted to IR employees who were non of the Catholic faith and, consequently, non discipline to the same requirement to human activeness inwards expert faith together with alongside loyalty to IR’s ethos’

The Court also confirmed the seat it took inwards Egenberger that the acknowledgement inwards Article 17 of the Lisbon Treaty that the Union respects the condition of churches together with religious associations nether national police clit precisely ‘expresses the neutrality of the European Union towards the organisation past times the Member States of their relations alongside churches together with religious associations together with communities, that article is non such as to exempt compliance alongside the criteria set about inwards Article 4(2) of Directive 2000/78 from effective judicial review’.

Giving Effect to the Ruling: Indirect Effect together with Mangold Principles

The national courtroom also asked a number of questions inwards relation to its mightiness to give number to the Directive as interpreted past times the Court of Justice. When making its reference, the national courtroom indicated that it suspected, correctly as it turned out, that High German police clit was inconsistent alongside the Directive. As this was a dispute betwixt 2 private parties, vertical direct number of the Directive per se was non available. In its ruling the Court of Justice took the chance to remind the national courtroom that the obligation of consistent interpretation set about inwards Marleasing together with subsequent cases, included an obligation to accommodate established national case-law.

Interestingly, the Court ruled that fifty-fifty if it was non possible to translate High German police clit consistently alongside the directive, the national courtroom could all the same give number to Directive 2000/78 inwards this instance past times disapplying the relevant national law. In doing together with then it relied, as it had inwards Egenberger, on the controversial line of cases arising from the Mangold ruling inwards which the Court held that Directive 2000/78 precisely codified a pre-existing European Union legal obligation to honor the full general regulation of equal handling which was non dependent on whatsoever implementing measures past times the Member State. This obligation applied notwithstanding the fact that JQ had been fired earlier the Charter of Fundamental Rights came into forcefulness because the regulation of equal handling was already binding as it was a full general regulation of police clit arising from the mutual constitutional traditions of the Member State.

Significance

With iv major rulings inwards eighteen months, the outlines of the approach of the Court of Justice to the religion-related provisions of Directive 2000/78 are at nowadays reasonably clear, giving us a clearer moving painting of the approach of the Union to religion’s role inwards the legal scheme to a greater extent than generally.

First, it is clear that the Court is committed to an approach that involves balancing of clashing rights through the framework of proportionality. Under European Union police clit at that spot is a sliding scale of religious autonomy alongside decreasing autonomy for religious employers the to a greater extent than distant a role is from the nub religious functions. Furthermore, whatsoever discriminatory decisions must survive capable of existence challenged inwards a meaningful way earlier the courts. Religious bodies cannot determine for themselves the marker of exemption from anti-discrimination rules necessary to protect their ethos.

This is inwards contrast to the approach of the United States of America Supreme Court which has adopted an approach based on the thought of a ‘ministerial exemption’ nether which the nation has no right to assess decisions of religious bodies inwards relation to roles that guide hold a religious chemical component together with indeed, to the approach of the European Court of Human Rights which upheld, inwards cases such as Fernández-Martínez v Spain, an organisation nether which the automatic termination of the contract of a organized religious belief instructor inwards a populace schoolhouse on human foot of conclusion of a local bishop to withdraw his endorsement of that instructor was discipline to really limited review. The commitment of the Court to proportionality as a way to resolves clashes inwards this surface area way that it is in all probability that, when it is faced alongside a instance of the non-discriminatory application of an ethos-loyalty obligation to an employee, it volition insist that such an obligation survive limited inwards guild to ensure that it does non guide hold a disproportionate impact on other fundamental rights such as the right to privacy of liberty of expression.

Second, the Court is keen to bound its tolerance of policies that guide hold potentially discriminatory implications on grounds of religion, to instances where the policy is consistently applied. Thus, inwards Achbita together with Bougnaoui it stressed that neutrality policies would survive considered indirectly rather than straight discriminatory alone if consistently applied to all contestation of all forms of religious, philosophical together with political belief. Similarly, inwards JQ v IR it found error inwards the fact that the loyalty obligation would non guide hold been applied to a non-Catholic inwards JQ’s role. The Court has also made it clear that, as inwards Bougnaoui, inwards cases where a policy is shown to survive straight discriminatory it volition non give a broad interpretation to the concept of a ‘genuine together with determining occupational requirement’. This approach also involves a commitment to process religious together with non-religious beliefs equally, something that sets European Union police clit apart from approaches inwards many other areas of the world.

Finally, the Court regards the Treaty commitment inwards Article 17 to honor the condition of religious bodies inwards national police clit non as a mandate to exempt the legal privileges of religious bodies from review for their compliance alongside European Union legal norms but as a contestation of the EU’s neutrality inwards relation to the dissimilar ways inwards which Member States organise their relations alongside churches together with religious bodies.

Finally, for European Union police clit to a greater extent than generally, recent organized religious belief cases guide hold underscored the Court’s determination to persevere alongside its controversial approach of regarding Directive 2000/78 as doing no to a greater extent than than giving specific appear to an already self-executing full general regulation of non-discrimination inwards European Union law.

Barnard together with Peers: chapter 9, chapter 20

Photo credit: Lifenews.com

Share this post