Quando liberta' religiosa e orientamento sessuale entrano in conflitto
Giuseppe Antonio Recchia, Ricercatore di Diritto del lavoro nell’Università degli Studi di Bari
Esiste un conflitto emergente tra la libertà religiosa e i diritti riconosciuti alla comunità LGBT, che, in ambito lavorativo, ricadono sotto l’ombrello di protezione della Direttiva 2000/78/CE del Consiglio. Il saggio intende analizzare, in una prospettiva comparata, il diverso scenario in vari Stati membri in merito a tale specifico conflitto, tenendo conto del ruolo che la giurisprudenza, europea e nazionale, può svolgere nel risolvere o bilanciare alcune delle sue ambiguità. Si intende verificare, in ultima analisi, se esista una gerarchia tra questi due fattori di rischio, o se invece possano coesistere.
There is an emerging conflict unfolding between religious liberty and LGBT rights that need to be assessed under Employment Law and the scope of Council Directive 2000/78/EC. The paper will analyse, in a comparative perspective, how Member States tackle the described collision and the role of the case law, also on a supra-national level, in solving or balancing some of its ambiguities. The aim is to assess whether a hierarchy exists between these two different factors, or they can coexist.
Keywords: discrimination – employment contract – sexual orientation – religion.
1. Interactions and intersections between religious freedom and sexual orientation: an introduction - 2. The interindividual conflict between religious freedom and sexual orientation in the workplace: from the relevance of opinions … - 3. … to the performance of work tasks - 4. Organisations with a religious ethos and their difficult relationship with sexual orientation - 5. Concluding remarks: hierarchy or coexistence? Notes on a possible reconciliation - NOTE
1. Interactions and intersections between religious freedom and sexual orientation: an introduction
In May 2014, Mr. Lee, a member of QueerSpace, a Northern Ireland LGBT association, commissioned Ashers Bakery a cake to be decorated with the words “Support Gay Marriage” for the closing event of the week against homophobia; despite having initially accepted the order and its payment, the McArthurs, owners of the company, took soon a step back, claiming their Christian faith would make impossible to fulfil such task. Mr. Lee sued the Bakery claiming to have been mistreated according to the Fair Employment and Treatment (Northern Ireland) Order 1998, which prohibits the discrimination in the supply of goods, facilities or services on the ground of religious or political opinions, as well as the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which prohibits discrimination in the supply of goods, facilities or services on the ground of sexual orientation. While the first two judgements were favourably concluded for the claimant, the Supreme Court  held that the case did not raise an issue of (direct) discrimination on the ground of sexual orientation: the McArthurs, in fact, had cancelled the order not because of Mr. Lee’s (actual or perceived) sexual orientation, but because of the requested message. In other words, it was not an issue of “personal characteristics”, since the bakery had both LGBT customers and employees, nor it was a case of a different treatment, since the contested message would have been refused [continua ..]
2. The interindividual conflict between religious freedom and sexual orientation in the workplace: from the relevance of opinions …
In view of the diversity of opinions typical of a pluralistic and multicultural society, the workplace is probably the most natural place in which those opinions can be expressed and potentially come into conflict, not only when they are manifested in a way that could be considered offensive by the listener, but even more so when they are expressed with the intention – sometimes perceived as a moral duty – to proselytize or convince others of their truth . It is something that goes beyond public display of symbols  or religious practices , which ultimately involves exclusively the relationship between a worker and his/her employer. Here, instead, religious manifestation impacts and potentially conflicts with LGBT rights, also protected in the form of prohibition to discriminate by the 2000 Framework Directive and national legislation. A first scenario is offered when the religious belief induces an employee to express his convictions about the sinfulness of homosexuality or the sacredness of the family composed of a man and a woman; such a speech could be perceived by some colleagues as irritating, at best, and degrading at worst . It is a picture which the 2000/78/EC Directive does not seem to deal directly with – and is instead confined, when it is the case, to the protection against insult (or the tort relevance of homophobia) – but that nonetheless can call for its intervention in a two-fold way. On the one [continua ..]
3. … to the performance of work tasks
If, on a first standpoint, the intersection between religious freedom and sexual orientation arises in terms of “manifestation”, a different but close scenario concerns the “practice”, where the conflict arises between a worker’s religion and an obligation to perform a task, even if disobeying a religious precept. It is more likely to happen as the legal systems move towards an effective promotion and protection of sexual orientation, regulating same-sex unions, parentage and adoption . Two cases, recently discussed by the European Court of Human Rights, demonstrate the potential and the struggle of such conflict. In Ladele v. London Borough of Islington, the case concerned a registrar of the London borough of Islington, who, following the introduction of the Civil Partnership Act 2004, objected to being required to officiate at civil partnership ceremonies due to her Christian beliefs. When Islington Council insisted that she should undertake at least some of these duties and disciplined her, threatening her with dismissal, she alleged that she had suffered discrimination on the grounds of religion or belief under the Employment Equality (Religion or Belief) Regulations 2003 . It is interesting to mention that the original Employment Tribunal concluded that the claimant had suffered direct and indirect discrimination and harassment on grounds of religion or belief, without taking into consideration either the nature of the [continua ..]
4. Organisations with a religious ethos and their difficult relationship with sexual orientation
A different level of conflict between religious freedom and sexual orientation is manifested when the first is incorporated into the ethos of the employer. There are many ways in which this conflict can burst: e.g., when a religiously oriented organisation decides not to hire, or to terminate the relationship, based on the “diversity” of the candidate/employee or opinions (for example, regarding same-sex unions) deemed irreconcilable with the doctrine to which the organization informs itself; or else, when an organisation with a religious ethos demands its employee not to show his/her sexual orientation or not to contest its religiously oriented positions; in other words, when it is demanded the ethos to be adopted, in one way or another, by the employee . These are not minor possibilities, to which Directive 2000/78/EC provides a balancing solution, not devoid of ambiguity and implementation issues. The answer is in the Article 4.2, worded moreover as an option («Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive ... »), but with the effect of crystallising, at the date of its entry into force, what has already been practiced at national level. It can be said, with a certain approximation, that the aim was to provide a specific exception for the different treatment set in place [continua ..]
5. Concluding remarks: hierarchy or coexistence? Notes on a possible reconciliation
In conclusion, we can return to the question posed in the introductory remarks, whether it is possible to identify, in the existing regulatory framework, both at European and national level, a hierarchy between the two factors of discrimination, i.e. religion (and belief) and sexual orientation, on the basis of an increasing conflict between them, also highlighted by judicial case studies. Our analysis do not seem to indicate the prevalence of one over the other: both considered by the Directive 2000/78/EC, inhabiting the “smaller” area of protection, limited only to employment and occupation, religion and sexual orientation are equally considered with regards of the definition and the scope of direct discrimination and its exceptions, indirect discrimination and its justifications, as well as harassment. At most, a partial advantage would seem to be granted to religion when it “enters” the employer’s organisation; and yet, in this case, sexual orientation is “preserved” by explicitly listing the factors destined to surrender in front of organisation’s ethos (religion and belief) and clearly excluding the possibility of a «discrimination based on another ground» (Article 4.2 of the Directive). If this is the abstract picture, the case law seems to tell a different story, which tends to see the bearer of a religious belief losing the battle with the (increasing) effectiveness of the prohibition of discrimination [continua ..]