Faith versus Sexuality in the Workplace: Legal Perspectives on Religious Accommodation

1. Faith versus Sexuality in the Workplace: Legal Perspectives on Religious Accommodation Matthew Gibson Liverpool Law School, University of Liverpool (mgibson@liverpool.ac.uk)

2. My research focus • Religious liberty protected at law in a variety of ways: criminal laws; human rights laws (freedom of religion); discrimination laws (religious discrimination); religious exemptions to other discrimination laws, eg to sex and sexual orientation discrimination in employment. • Nevertheless, recent legal decisions in our discrimination law have still constrained religious freedom leading to calls for further religious liberty protection: notably, the concept of ‘reasonable accommodation’, its utility in religious discrimination claims and whether it should be introduced. • Academic consideration of both what reasonable accommodation is and how far it may aid religious liberty has increased. There have also been corresponding discussions in both national and supra-national courts, the media, together with reports by interested parties on the potential for reasonable accommodation of religion in discrimination cases (EHRC; Christians in Parliament; Christian figures).

3. Religion, the law and sexual orientation? • The possibility of ‘reasonable accommodation’ of religion in two situations: • employment (religious employees); and, • the provision of goods and services (religious providers). • 1) Employment: three types of claim – • Accommodation re: work timetables. • Accommodation re: dress policy. • Accommodation re: beliefs concerning matters of sexual orientation. • Focus on 1c) and how far a legal test of reasonable accommodation may help reconcile these disputes. Analysis informed by facts of recent cases. Concerned with the facts/issues in practice and whether a model of ‘reasonable accommodation’ would exempt religious employees. Should this be done?

4. Recent cases concerning religious beliefs and sexual orientation • McCLINTOCK v. DEPARTMENT OF CONSTITUTIONAL AFFAIRS (2007) • A Christian magistrate wished to be excused from those elements of his judicial duties which required him to sit on same-sex adoption applications following changes to adoption laws. He resigned from this part of his role and subsequently lost his claim for religious discrimination. • LADELE v. LONDON BOROUGH OF ISLINGTON(2009) • A Christian registrar of births, marriages and deaths, whose employers also designated as a civil partnership registrar following the introduction of the Civil Partnership Act 2005 but were not forced to so designate by law, lost her claim for religious discrimination when she refused to officiate civil partnership ceremonies. • McFARLANE v. RELATE AVON LTD (2010) • A Christian counsellor, who counselled both mixed and same-sex couples on relationship matters (including sexual matters if they arose for discussion), became qualified in psycho-sexual therapy (of its nature concerned with therapy specifically of sexual dysfunction) and sought an exemption from his employers that he would not have to engage in PST therapy with same-sex couples. The employers refused and his claim for religious discrimination was unsuccessful.

5. Models of reasonable accommodation for religion: United States • Reasonable accommodation test in employment: • Accommodation up to employer ‘undue hardship’. Based on a ‘de minimis’ test. • Economic and non-economic hardship permitted (non-economic will relate to disruption and administration). • No undue hardship where total lack of employer accommodation (rare). But if found, employee may suggest alternatives. • Confusion over hypothetical undue hardship? Does it count as hardship if employer cites it? eg. effects of accommodating the religious employee on other workers. • Undue hardship on employer likely to be found where employer has made accommodation suggestions, even where impractical or unhelpful. • If total lack of employer accommodation only ‘measured’ employee suggestions are valid. Such employee suggestions may still be overridden by the employer’s if made at a later date.

6. Models of reasonable accommodation for religion: Canada • Reasonable accommodation test in employment: • Accommodation up to ‘undue hardship’. No de minimisrule. • Financial cost to the employer: • Employee morale: • Inter-changeability of the workforce and facilities: • Size of the employer? Inter-linked with above sub-tests. • Safety risks, magnitude of risks and those who bear the risks: • Critically, this is non-exhaustive. Can consider any other relevant factors. • Now – an impossibility test?

7. Models of reasonable accommodation for religion: disability adjustments in England and Wales • Some adjustments that can be considered? (Equality Act 2010, s. 20; Equality and Human Rights Commission’s Employment Statutory Code of Practice: Equality Act 2010 ) • Enabling the person to have some of their duties allocated to another person; • transferring the person within an organisation to fill an existing vacancy; • having hours of work or training altered; • assigning the person to a different place of work or training; • giving to the person, or arranging for them, training or mentoring; and, • conducting a proper assessment of what reasonable adjustments may be required.

8. Models of reasonable accommodation for religion: disability adjustments in England and Wales • The critical factor is the ‘reasonableness’ of adjustments. See Equality and Human Rights Commission’s Employment Statutory Code of Practice: Equality Act 2010 . • the extent to which it is practicable for an employer to take the step; • the financial and other costs which would be incurred by an employer in taking the step and the extent to which taking it would disrupt any of their activities; • the extent of the employers financial and other resources; • the availability to the employer of financial or other assistance with respect to taking the step; • the nature of the employers activities and the size of their undertaking; and, • the effects of adjustments on other workers.

9. Case Study: LADELE v. LONDON BOROUGH OF ISLINGTON

10. Ladele: the facts L was appointed as a registrar of births, marriages and deaths in 1992. With the recognition in domestic law of same-sex civil partnerships via the Civil Partnership Act 2005, such partnerships also had to be registeredand each registration authority had to ensure there was a sufficient number of civil partnership registrars. However, each authority could choose who it designated in such a role: some were selective; others like Islington designated all their existing registrars with civil partnership duties without consultation.

11. Ladele: the facts • L took the view that participation in same-sex civil partnerships was inconsistent with her disapproval, as a Christian, of homosexuality. • Two other workers did too. One voluntarily left Islington’s service; the other was found alternative work with the same pay and accepted. • For a period her employers turned a ‘blind eye’ to the fact she swapped rotas with other colleagues in order to avoid officiating at civil partnership. It later offered her a temporary accommodation: her duties could be confined to the simple signing process at civil partnership ceremonies as opposed to the full ceremonies themselves. She refused this offer.

12. Ladele: the facts • L’s employers had implemented a ‘Dignity At Work’ policy which guaranteed equal treatment to other employees and, indeed, members of the public, on grounds of – amongst others – sexual orientation. The latter guarantee also underscored its legal duty not to discriminate on grounds of sexual orientation in the provision of goods and services. • Moreover, L’s employers were under threat of sexual orientation discrimination claims by gay members of staff who had been made aware, by L, of her views on same-sex relationships, and who took the view that her refusal to be involved in civil partnerships was indicative of homophobia and breached the employer’s dignity at work policy. • L was disciplined and subsequently sacked. • Her claims for religious discrimination were unsuccessful.

13. The Court of Appeal found that once L had been designated as a ‘civil partnership registar’, Islington were not merely entitled to require her to perform civil partnerships but were obliged to do so. • The CA in Ladele noted that some registration authorities had decided not to designate registrars who shared L’s beliefs as civil partnership registrars and stated that ‘such decisions may well be lawful’, para. 75.

14. Application of models to Ladele • United States Model • Were there reasonable accommodations that the employer could have made for Ladele up to the point of undue hardship? • If so, total lack of employer accommodation? Offer of not having to officiate at civil partnerships with no ceremonies. But temporary offer? Unhelpful or unrealistic? • No hypothetical hardship, eg on other employers. Rather, evidence of real hardship re: gay co-worker complaint letters. • Alternative ‘measured’ suggestion by employee? Refuse to officiate/swap duties with colleagues. Over-ridden by employer accommodation offer? • Canadian Model • Any discernible financial cost to employer?? • Employee morale? Only 2 other registrars. Importance of tolerance/flexibility? But issue of dignity policy? • Inter-changeability of workforce? Evidence of roles swapped satisfactorily. Long-term viability for employer? • Impossible for employer not to accommodate?

15. Application of models to Ladele • UK Disability Model: Adjustments? • Duties allocated to another person? Other registrars prepared to assist? • The modifying of Ladele’s duties to not officiate at actual civil partnership ceremonies. • Transferral elsewhere in organisation? • UK Disability Model: Reasonableness? • the extent to which taking the step would actually prevent the effect to which the duty is imposed. Implications of the dignity policy? • Practicable – if no financial burden. Disruption to work patterns/timetabling? • Effects on other workers? 2 adverse worker effects identified. • However, evidence of another worker who may have had similar views to Ladele.

16. Concluding thoughts • Narrowness of U.S. model. • Potential generous flexibility of Canadian model? • Uncertain balancing of UK Disability approach. • Reasonable accommodation of religion in case of clashing beliefs with matters of sexual orientation is likely to be unsuccessful given issues of law and policy that would be breached if it were allowed. • These issues are at play in Ladele but, on the rather unique and unusual facts, they could have been avoided. • Putting Ladele to one side, would we be able to say that accommodating the individuals in McClintock and McFarlanewas ‘reasonable’? Will reasonable accommodation be limited to claims against employers and goods/service providers where there is no clash with other protected characteristics, eg sexual orientation?