The 4th Section chamber of the European Court of Human Rights has ruled that the United Kingdom is acting within the “margin of appreciation” under the European Convention on Human Rights in upholding the decisions by two employers to discharge employees who were unwilling to abide by the employers’ non-discrimination policies, which forbid sexual orientation discrimination. The employees in question, one governmental and one non-governmental, posed objections based on their Christian beliefs.
The 4th Section’s ruling will not be final until losing parties have an opportunity to seek further consideration from a larger body of judges. The decision is available on the court’s website under the title “Case of Eweida and Others v. The United Kingdom” (15 January 2013).
In the same decision, the Court also ruled on discrimination claims from two employees who claimed discrimination regarding their insistence on wearing a cross on a necklace chain at work. The Court held that British Airways should not have suspended a customer service representative over this issue, but that a health care organization could properly forbid an employee from wearing such a religious ornament on safety grounds.
In the first of the two gay-related cases, Lillian Ladele, employed by the London Borough of Islington as a registrar of vital records, encountered difficulty when the U.K. legislated to authorize civil partnerships for same-sex partners, that would be conducted in civil registry offices. Ms Ladele has religious objections to performing such ceremonies, and ultimately the Borough dismissed her, concluding that it would be inconsistent with the local government’s policy against discrimination to employ a registrar who would refuse to perform these ceremonies for same-sex couples. She brought her case to an Employment Tribunal, which ruled in her favor, but the local government authority appealed and won a reversal from the Employment Appeal Tribunal, which held that the local authority’s legitimate aim of providing registrar service on a non-discriminatory basis justified discharging an employee who was unwilling to provide such service. The Court of Appeal affirmed, finding that the local authority’s “laudable aim was to avoid, or at least, minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served.”
In the other case, Gary McFarlane, a retired “elder of a large multicultural church in Bristol,” was working as a counselor for Relate Foundation, which provides confidential sex therapy and relationship counseling to clients, under ethical principles established by the British Association for Sexual and Relationship Therapy. These principles forbid discrimination based on sexual orientation. McFarlane’s work as a counselor ended over his religiously-based reluctance to provide therapy to same-sex couples. The Employment Tribunal found that he had not been discharged due to his faith, as such, but because his expressed views indicated he would not be able to provide “the full range of services to all sections of the community, regardless of sexual orientation,” which the Tribunal found to be legitimate aim of the employer. The Appeal Tribunal upheld this ruling, and the Court of Appeal refused his application to appeal.
In all four cases, the Court of Human Rights faced the question whether the employees had raised a valid concern of either direct or indirect discrimination based on religion. In confronting this issue, the Court went beyond its prior precedents, according to press accounts of the ruling, to find that there was at least indirect discrimination that could implicate the Convention protection of religious liberty, but in the two gay-related cases as well as the hospital case, a majority of the panel concluded that either the discrimination was justified on practical grounds (the hospital case) or was within the “margin of appreciation” afforded by the Convention to contracting parties (i.e., countries party to the convention) who were in the position of having to balance contending Convention rights.
The Convention has been construed in past cases to ban sexual orientation discrimination as well as religious discrimination, which means that countries governed by the Convention can legitimately seek to ensure that LGBT citizens are not subjected to discrimination by entities such as government registry offices and private counseling services.
Under the court’s decision, a country’s statutory law or legal system would not necessarily be compelled to balance the rights in this way, as some commentators quickly pointed out. But the decisions by the Employment Appeals Tribunal and, in one case, the Court of Appeal, struck a balance that was deemed acceptable by the Court in allowing the employers in question to give more weight to the non-discrimination rights of clients than the religious objections of individual employees.
The decision in favor of the airline customer service worker led to the ruling being hailed in some British newspapers as a victory for religious freedom, although some of the same commentators inevitably saw the rulings against Ms. Lalede and Mr. McFarlane as a defeat for religious rights.
Interestingly, the Court’s opinion briefly summarizes foreign authority, noting that under Title VII of the U.S. Civil Rights Act of 1964, employers are required to make a “reasonable accommodation” to religious practices and beliefs of employees. But the court’s discussion of U.S. law seems focused entirely on the issue of wearing a cross, making no direct reference to U.S. cases concerning employees who object to providing services to LGBT customers. There has been a recent split of authority among U.S. courts on the question whether students in public university graduate degree counseling programs may be dismissed when their religious views get in the way of providing counseling to same-sex couples.