Gay Rights vs Christian Beliefs

The Northern Ireland Court of Appeal has today decided an appeal in the litigation known as the ‘Gay Cake Case’.

A gay rights campaigner asked a christian baker to bake the cake pictured above. The baker refused and the campaigner claimed unlawful discrimination. Perhaps there were no other cake shops in town?

‘So how does that even work?’ you may ask. It goes like this: the campaigner is associated with the campaign to legalise gay marriage in Northern Ireland; the baker treated him less favourably because of that association and therefore on the grounds of gay/lesbian sexual orientation.

Most media attention has focused on the idea that the immovable object of religious belief was meeting the irresistible force of gay rights. Which would prevail in this modern incarnation of the ancient ‘spear / shield paradox’? ‘Roll up, roll up’, tickets for entry, edge of seat stuff. Even Patrick Stewart has commented. Please beam me up!

What they don’t tell you is this: associative discrimination is direct discrimination (i.e. less favourable treatment because of the protected characteristic itself, not something linked to it) and cannot be justified (by reference to religious belief, or anything for that matter).

So the baker was left to argue technical defence points, like freedom of speech (or if you think about, a kind of inverted freedom not to speak / write in icing).

Unsurprisingly it did not work; the Court of Appeal ruled against the baker and the sound of teeth biting down onto rosary beads was almost palpable.

The bottom line: ‘you cannot legally refuse a service to someone because of sexual orientation (either their own, or that of others who are associated with them)’. Most UK employers know this already: now the bakers of Northern Ireland do too.

Jewish Sabbath and Religious Discrimination

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A Manchester Tribunal awarded £16,000 in damages to an unsuccessful job applicant who was rejected because she could not work on Saturdays

The Jewish sabbath (‘shabbat’) prohibits work from sunset on Friday to sunset on Saturday, however, the Respondent is a travel agency and wanted an employee who could be more flexible with hours.

Employers who operate practices that disadvantage applicants or employees because of their religion or belief face indirect discrimination claims, however, this is not the end of the story.

Often indirect discrimination can be justified and if individual cases are handed sensibly and carefully, this kind of liability (and the associated negative publicity) can be avoided.

Flowing Jilbabs and Religious Discrimination

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The EAT has upheld a Tribunal’s decision that a limit on the length of a ‘jilbāb’ was not discrimination

A ‘jilbāb’ is any long and loose fitting coat or garment and is worn by some muslim women. The jilbāb covers the entire body, except for hands, face, and head. The head and neck are then covered by a scarf or wrap (khimar). Some women will also cover the hands and face (niqab).

This type of garment is worn to comply with the Quran’s stipulations about modesty, in both men’s and women’s ‘gaze, gait, garments, and genitalia’ (see the Encyclopaedia of Islam and Muslim World).

In the case of Begum v Pedagogy Auras UK Ltd Ms Begum applied for a job as a nursery assistant and was asked if she could wear a shorter jilbāb that was not a trip hazard. She said ‘no’: she felt obliged to wear a long, flowing jilbāb, and took a claim of indirect discrimination on grounds of religion or belief against the employer.

Ms Begum lost her claim on two grounds:

  • she had not shown that her faith required a jilbāb that went beyond ankle level.
  • even if her faith required such a garment the employer’s reason for requiring a shorter one was justified.

The EAT upheld the Tribunal’s decision, finding that there was no error of law in its approach and that its findings were not perverse.