Equality must apply in employment as well as in marriage

If the marriage equality referendum is passed in May, laws on workplace discrimination may be in conflict with these new entitlements, writes Claire Hogan.

In late December, the Equality Tribunal made a finding of discrimination in favour of a teacher who in an interview for the position of principal, was asked by a nun for her opinion on “the homos”.

Last week, a gay teacher known as ‘Pixel’ entered, and subsequently won, a Newstalk wedding competition with a lip-syncing video where her face was pixelated out, a measure she and her partner felt she should take in order to keep her job safe. These two recent stories shine a light on the issue of religious ethos in Irish workplaces.

Despite gradual patronage reform, more than 90% of primary schools and more than 50% of all post-primary schools in Ireland have a religious patron. Furthermore, many Irish hospitals retain an ethical code of conduct which is inspired by Catholic dogma.

The legal landscape has not changed significantly since the infamous case of teacher Eileen Flynn, dismissed in 1982 for living with and becoming pregnant by a married man whose wife had left him. The High Court held that the school was “entitled to conclude that [Ms Flynn’s] conduct was capable of damaging their efforts to foster in their pupils norms of behaviour and religious tenets which the school had been established to promote”.

The Unfair Dismissals Acts 1977 did not avail Ms Flynn in that case. Furthermore, equality legislation enacted in the late 1990s has cemented the permission given to institutions with a religious ethos to dismiss employees for aspects of their private lives.

Section 37(1) of the Employment Equality Acts 1998-2011 provides that a religious, educational, or medical institution under the control of a religious body shall not be taken to discriminate where it (a) treats an employee or prospective employee more favourably on a religious ground where it is reasonable to do so in order to maintain the religious ethos of the institution; or (b) takes such action as is reasonably necessary to prevent an employee from undermining that religious ethos.

The offending provisions are opposed by teachers’ unions and LGBT organisations. Section 37(1) now sits alongside legislation that permits same-sex civil partnership.

With the country set to vote on marriage equality in May, ethos protection appears to be on a trajectory towards conflict with the marriage equality agenda.

A Private Members’ Bill to correct this aspect of the Employment Equality Acts was introduced in the Seanad by senator Ivana Bacik, and has been adjourned to await the drafting of government amendments.

The Employment Equality (Amendment) (No. 2) Bill 2013 provides that where an educational or medical institution is maintained or assisted by recurrent grants provided out of public funds, dismissing or disciplining a teacher to prevent him or her undermining the ethos shall be considered to be discrimination unless, by reason of the nature of the employment concerned or the context in which it is carried out, the action taken is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary. This provision recognises that, with a State-financed system of denominational education, State entanglement in discrimination which its legislation generally otherwise proscribes is problematic.

If passed, the only institutions which will be able to discriminate more freely in order to protect the coherence of the belief and value system they espouse are those which are privately funded.

The vast majority of schools and medical institutions will have to demonstrate the action they took in respect of an employee pursued an objective justification in furtherance of a legitimate aim, and that the action was proportionate.

This language brings the legislation closer to the EU Employment Equality Directive which inspired it. Factors which may fall to be considered in future cases include the clarity of definition of the ethos, the centrality of the employee’s role to the ethos of the institution, and the necessity for the employee to be of a particular religion, or to lead a certain lifestyle.

For instance, should the bill be enacted, a Catholic school could potentially justify dismissing a married gay person who held the position of religion teacher, but it might not be possible to justify dismissing an openly gay geography teacher.

A possible argument that might be deployed against the bill is the constitutional guarantee in Article 44.2.5 for religious denominations to manage their own affairs, own, acquire and administer property, and maintain institutions for religious or charitable purposes. Denominational autonomy has been heretofore emphasised in case law. For instance, in a 1970s decision involving the dismissal of two lecturers and priests from Maynooth College arising from their decision to seek laicisation, the Supreme Court would not censure the college, and held that the State might be required to recognise and buttress discriminations which flow from the tenets of a particular religion, in order to give vitality, independence and freedom to religion.

However, should such autonomy arguments be overcome, and should the Government prioritise this legislative reform, the passing of the Employment Equality (Amendment) (No. 2) Bill 2013 would represent a welcome step in the State’s development of a more consistent stance on employment equality for those engaged in what are effectively State jobs.

If the referendum in May passes, there is a need to avoid the absurd position whereby the State permits gay people to marry, but simultaneously requires them to pixelate the wedding album that will be passed around the staff room.

Dr Claire Hogan is a practising barrister, and wrote her PhD on freedom of religion