Special Treatment for Religion in the Workplace?

The reasonable accommodation of religion in the workplace has been a growing issue. There are two basic types of cases.

1. Cases which involve issues not directly related to the job performed by the employee.
i. Nadia Eweida, a British Airways worker, was told she couldn’t wear a cross as a sign of her Christian faith. She was subsequently allowed to wear it and the European Court of Human Rights gave BA a slap on the wrists, judging that her right to manifest her religious belief under Article 9 of the European convention was being infringed without good reason.
ii. Shirley Chaplin, a hospital nurse, made a similar claim but unlike Eweida she lost her case as her employer pleaded reasonable grounds (health and safety) for forbidding jewellery.
iii. Victoria Wasteney was disciplined by her employer due to her efforts to convert a Muslim colleague. She lost her appeal for reasons I’ll mention below.

2. Cases which are directly related to the job performed by the employee.
i. Lillian Ladele, a civil servant who worked as a registrar of births, deaths and marriages was disciplined for refusing to do work in connection with registering civil partnerships of gay couples.
ii. Gary McFarlane was a counsellor working for Relate who lost his job for refusing to do counselling sessions for gay couples.
iii. Stephen Copsey was dismissed for the refusal to work on Sunday.

There is, I think, a decent case for a reasonable accommodation with respect to the first set of cases, but not the second, which call not for reasonable accommodation but for special treatment.

One of the strengths of our society is its pluralist nature. Who wants a society where everyone thinks, acts, and dresses the same? Or worse, where people are afraid to speak about issues of controversy lest they offend someone? Does anyone seriously think wearing a cross is a hindrance to performing one’s duty as an employee? If we didn’t have the right to express and practice beliefs the idea of freedom of religion would be a vacuous one. Unless there is good reason – as in case 1(ii) above – to forbid certain items of clothing or jewellery – then I suggest we err on the side of freedom and individualism, and defend individuals – in law – against infringements on their freedom when there is no good reason.

With respect to employee-employee conversion attempts I think that a hands-off approach should be the default policy. Two adults should be able to engage in whatever discussion they like – as long as it doesn’t get in the way of their work – without worrying if they are breaking some silly censorious rule. Of course, if behaviour becomes inappropriate or unwanted by one or other of the parties, then an employer should be able to interfere. In case 1(iii) above, Ms Wasteney was in a superior position to the Muslim in the organisation, and engaged in unwanted behaviour such as laying her hands on her Muslim colleague to pray for her. So, Wasteney was not being denied freedom to manifest her religion in accordance with the European Convention on Human Rights, but rather she was being denied – quite rightly – the right to engage in unwanted, non-consensual conduct. The freedom to manifest one’s religion does not afford a right to encroach the rights of others in such ways, and Article 9(2) of the European Convention is explicit on this point.

Which brings me to the second set of cases. When a person takes a job the organisation in question has certain rights over them. Most jobs are governed by a contract of employment, and failure to fulfil the terms of that contract quite rightly brings consequences. Take case 2(ii) above. Upon taking the job Gary McFarlane signed an equal opportunities commitment and only afterwards wanted to be excused from counselling same-sex couples. There could have been no “reasonable accommodation” if the employer was to fulfil its purpose, and Mr McFarlane should not have taken this job any more than a vegan should take a job in a butcher’s shop. The same goes for any other case in this category. The beliefs we hold might well bring consequences for us, but that is our problem and not the problem of everyone else to accommodate it. Of course, it might be a nice thing for an employer to make adjustments to suit the whims of a religious believer. For example, it might well suit the employer to deploy a Muslim employee to a place they won’t have to sell alcohol. Alternatively it might suit non-Christian employees to work on a Sunday so the Christian doesn’t have to. But this does not mean the believers in question have a right to have their foibles accommodated and protected by the full force of the law. It might well be the case that the non-Christian values his Sundays off just as much, and why should he have to sacrifice them?

Furthermore, if we decide that there should always be a reasonable accommodation for religious beliefs, what’s to stop an employee from pleading this in all manner of cases? Suppose I decide that it’s my firm religious belief that God forbids working before lunchtime. Should my employer be obliged to jump through all manner of hoops to accommodate me? In fact, on what grounds should religious beliefs be treated in this special way rather than ethical or political beliefs? Suppose I decide that obesity is a lifestyle I don’t want to support, can I rightly refuse to sell sweets and products high in fat to obese people? If religious beliefs concerning the sale of alcohol are to be accommodated, why aren’t these other beliefs? That way lies chaos. Surely if a person who works in a butchers shop decides to become a vegan he has only one choice: to leave his job. Part of what it means to be a mature and rational adult is the acceptance that one’s beliefs and lifestyle choices have consequences which must be accepted. Demanding the right to have everyone accommodate you betrays a staggeringly arrogant sense of entitlement.

Individuals are free to think and believe as they like, but in seeking to manifest those thoughts and beliefs in actions in the workplace they cannot rightly expect special treatment. No-one has a right to have one’s beliefs validated, particularly when the rights of others, the interests of the business, and fairness with respect to ones co-workers are also at stake; none of which are trumped by claimed religious rights. If all are to be treated equally then no one should expect preferential treatment or exemptions from certain jobs as of right: neither Christian, nor Jew, nor gay, nor straight. All are – and must be – equal under the law.

Stephen J. Graham

The Gay Cake Debacle: A Rejoinder to Robertson

Free Church of Scotland Moderator, David Robertson, has written a piece concerning the now infamous Ashers Bakery “gay cake” case.

You can read the Ashers judgment here:

https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2015/%5B2015%5D%20NICty%202/j_j_2015NICty2Final.htm

You can find Robertson’s article here:

http://www.premierchristianity.com/Blog/Bake-me-a-Cake-and-Mark-it-with-B-for-Bigot

Upon reading this, I tweeted in frustration:

“Yet another commentator who hasn’t bothered to read the judgment….”

To which Robertson replied:

“yet another tweeter who presumes ignorance. Feel free to answer the points made in the article. If you can.”

Challenged extended!

Challenge accepted!

Robertson’s central point is that the ruling of the judge is an example of double standards being imposed. But before we get to that Robertson makes a few comments:

He states: “Ashers did not refuse a gay person a cake. They refused to bake a cake with a message supporting gay marriage. And that changes everything.” This is flat-out false; it doesn’t change anything, not under the law. Ashers offered a service whereby a customer could design their own cake and Ashers would bake it and print the design. In this case the customer – a gay man – chose a slogan – “support gay marriage” – which is defined as “political opinion” under the law, and Ashers, after first accepting the order, refused to follow through. In other words, they discriminated on the grounds of sexual orientation and political opinion – both protected categories in Northern Irish law, made abundantly clear in the judgment Robertson claims to have read. Moreover, Robertson ignores the fact that in law Ashers is a commercial business which exists for profit. Commercial enterprises are not legally identical with their owners. Ashers therefore doesn’t have a religious conscious which is protected by the European Convention on Humans Rights, and it isn’t a religious organisation which can appeal to certain legal exemptions. Again, the judgment makes this abundantly clear.

Next, Robertson asks:

“Does this ruling now mean that a Jewish baker should be forced to bake a cake with a Swastika on it for the BNP (neither the sign nor the party are illegal in the UK)?”

If Robertson is speaking of the wider UK, then the answer is: no, because political opinion is not explicitly a protected category in England, Scotland or Wales. In any event, a Jewish baker could quite easily adopt a policy – which Ashers didn’t do – of rejecting all political or religious slogans, which is entirely legitimate under Northern Irish law.

Robertson’s other example also betrays a misunderstanding:

“Would the equalities commission sue a Muslim baker who refused to bake a cake with a cartoon of Mohammed on it, for a Charlie Hebdo party?”

Firstly, Robertson incorrectly identifies the Equality Commission as the plaintiff in such cases. In the Ashers case it was not the Commission who sued – it was the customer, which again should be abundantly clear from the judgment. In any event, since a picture of Muhammad would not represent anyone’s genuinely held religious belief, political beliefs, or identity, it would be difficult to make a case for discrimination here. And, of course, a Muslim-owned bakery is perfectly entitled to refuse all religious slogans (and probably would).

Robertson’s misunderstandings continue to pour forth, as he claims that “it is ridiculous for a Christian who thinks that Same-Sex Marriage is against the Word of God to be compelled to bake a cake with a message supporting it.”

Again, this isn’t true. Remember, the issue is not with a private individual but with a commercial entity. Anyhow, Ashers cannot be compelled to bake a cake with a message supporting same-sex marriage. It has been announced today that Ashers are now only printing birthday and Christening cakes – and no one can compel them to put “support same sex marriage” on a cake. Why? Because they no longer put any such slogans on their cakes. However, the problem before was that they did offer a service, which they then denied to a gay man on considerations pertaining to sexual orientation and political opinion.

Robertson then points out that in his view there was no discrimination in this case because “a heterosexual asking for such a cake would also have been turned down.” However, the judgment makes it explicit that this is not relevant. After citing a number of case law authorities the judge said: “it is my view that….the correct comparator is a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage.”” The judge deemed it clear that Ashers would have made such a cake for a heterosexual, and thus were making decisions based on sexual orientation in refusing Mr Lee (a homosexual) his cake with the slogan “Support Same Sex Marriage.”

Now beginning to lose the run of himself, Robertson claims that the real discrimination in this case is against “the Christian baker who is being told he will have to close down if he is not prepared to provide cakes with messages that contradict his beliefs.” Again, this is simply flat-out factually incorrect. The baker was not told to bake cakes with slogans contradicting his beliefs or close down. Remember, the entity in question is a commercial “for profit” business – which in law does not have religious beliefs that can be protected under the European Convention of Human Rights (as the judgment – which Robertson has read – makes abundantly clear). In any event, as I’ve already explained, Ashers will continue to bake and sell cakes and will not have to print any slogans with which they disagree.

Anyhow, to the crux of Robertson’s point: “There is a double standard in British society.”

To demonstrate this double standard Robertson mentions the example of The Scottish Christian Party (SCP), who during the general election had their election leaflet rejected by a printer because the printer, says Robertson “did not agree with the messages on it,” and that “The messages were not illegal but nonetheless they refused. Could they not be sued for the same reason?” Robertson laments that “The fact is that there is a double standard in British society just now. The law is being interpreted and enforced in one way for those who represent the cause celebres of our culture, and yet used in a completely different way for those who don’t agree with the shibboleths of our elites.”

Now this baffles me entirely. Robertson is comparing apples with oranges. There are several significant disanalogies between the two cases. Firstly, the Ashers case involved a private individual with rights under the European Convention. The SCP is a political party which, like a commercial business, enjoys no such protection. Secondly, the two cases emerge in different legal jurisdictions! It’s astounding that Robertson hasn’t noticed this fairly obvious fact. Ashers were brought to court under the following pieces of legislation:

The Fair Employment & Treatment Order (Northern Ireland) 1998, and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.

Both pieces of legislation are mentioned in paragraph 1 of the Ashers judgment (maybe Robertson skipped paragraph 1?). Notice that both are uniquely applicable to Northern Ireland. They do not apply to Scotland. This clearly isn’t an instance of the law being interpreted and enforced differently in one case than another. It’s a case of different law applying in different legal jurisdictions! Perhaps Robertson misunderstands the nature of the United Kingdom. Our country is the United Kingdom of Great Britain (England, Scotland & Wales) and Northern Ireland. There is some legislation that applies to all jurisdictions, some applies fully to some jurisdictions and only partly to others, and some that is only applicable to one jurisdiction (which happens increasingly these days since Northern Ireland, Scotland, and Wales have their own regional assemblies with certain legislative powers). So, the legislation in the Ashers case simply doesn’t apply to Scotland. Scotland has its own equality laws. Note further that in the case of the SCP no case was brought before the courts, so unlike the Ashers case there was no legal interpretation or enforcement taking place at all. So, why didn’t the SCP case go to court? Simple: under Scottish law, political opinion is NOT explicitly protected as it is in Northern Irish law. The reason for political opinion being protected in Northern Ireland traces back to our political tensions and the grief that has come from political disputes here. Clearly Robertson has made a blunder. The law simply isn’t “being interpreted and enforced” differently in different cases, and certainly not to suit some grand anti-Christian or politically correct conspiracy. The laws in each jurisdiction are simply different, and thus cases that occur in Northern Ireland will be treated differently.

[It’s worth noting in passing that the Scottish Christian Party member in question – John Cormack – gives a slightly different reason for the rejection than Robertson gives. Cormack says, “The printer I had lined up refused to print the leaflets for me because they have a policy of not printing material that might offend people.” He claimed further the printer was afraid to print the leaflets – not that they refused do so for the reason Robertson claims “[they] did not agree with the messages on it.” Given that the Scottish Christian Party is borderline homophobic – it’s election material spoke of REAL marriage – capitals in the original – as opposed to, presumably, “fake” (though legal in Scotland) same-sex marriages – it is entirely legitimate for a printer to err on the side of caution and not print material which is potentially inflammatory or homophobic. Anyhow, I digress….]

I agree with Robertson in his desire that our Christian freedoms not be eroded, but what he splendidly overlooks is that he lacks no right or freedom whatsoever that a non-Christian enjoys. The law applies equally to Christian and non-Christian alike. And this was upheld by the Ashers judgment.

Stephen J. Graham

PS

On Robertson’s own blogsite he reproduces this article but includes two notes:

“1). The man who brought the law suit is a member of a homosexual group called queer space who just happens to visit a bakery which was well known for its Christian owners, miles from his hometown. All entirely coincidental!”

Again, Robertson is showing his ignorance of the case. Gareth Lee had previously been a customer of Ashers, because it was near the office where he worked. Coincidence? No. Conspiracy theory? Maybe….

“2) SSM is illegal in Northern Ireland. The judge is supposed to uphold the law yet he finds that a bakery which refused to put a message of support for something that is illegal, are the ones breaking the law! The law is sometimes an ass!”

Another misstatement. SSM is not “illegal,” it’s simply that there is no legal provision for it. Murder is illegal. Theft is illegal. SSM is not illegal. Moreover, the judge was not a “he” – the judge was Isobel Brownlie – a she.