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J.ТEMPERMAN. RELIGIOUS ORGANIZATIONS AS SOCIAL SERVICT PROVIDERS - Moscow, Uzkoye, september 2011

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Йерун Темперман

The issue of freedom of association is inextricably linked with the freedoms enjoyed by organized religious groups. Art. 18 of the International Covenant on Civil and Political Rights codifies the right to freedom of religion or belief, while article 22 of the same Covenant codifies the right to freedom of association –– taken together, these provisions provide for a right to found and administer a religious organization.[i] Consider particularly the following elements:


Article 18 ICCPR: freedom of religion or belief:


Forum externum (& internum)

Collective element of freedom of religion

In private and public


Read in conjunction with: Article 22 ICCPR: freedom of association.

Human rights law holds that these organizations should minimally enjoy the following freedoms:

the freedom to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;

the freedom to establish and maintain appropriate charitable or humanitarian institutions;

the freedom to make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;

the freedom to write, issue and disseminate relevant publications in these areas;

the freedom to teach a religion or belief in places suitable for these purposes;

the freedom to solicit and receive voluntary financial and other contributions from individuals and institutions;

the freedom to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;

the freedom to establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.[ii]

 

Consequently, states may not arbitrarily interfere with most of the internal policies and activities of these organisations. That said, neither the right to freedom of religion or belief nor the right to freedom of association is an absolute right. If necessary in the interest of guaranteeing certain public goods (such as public order, the protection of public health or morals or the protection of the rights and freedoms of others),[iii] an interference with these rights is permitted (under tightly regulated circumstances). It goes without saying that such policies that would form an interference with such fundamental rights should be absolutely necessary, should be formulated and applied so as to truly promote recognized public interests (e.g. public order), and should not be applied in a discriminatory fashion. From this it follows that regulatory policies are not per se barred; however, states may not use such policies to prevent religious activity form occurring, or to disproportionally interfere with religious organizations’ freedoms, or to discriminate between different religions or beliefs.  The question now is how far religious autonomy and the right of self-direction of religious organizations reach under international law; or put differently, what are the possibilities and impossibilities for state regulation in this area. And I want to problematize the question even further by looking specifically at the area of equality law.

Religious Autonomy: Key Human Rights Issues

These are the key areas where religious organizations and the state may differ on procedural questions or questions about criteria and conditions:

  • Religious Officials
  • Other Employment Settings
  • Membership
  • Services

In each area the question is how far the state may push its equality agenda, or whether on the contrary full religious autonomy should prevail.

Religious officials

Out of these four issues, the question of religious officials is by far the most straightforward, as international human rights law itself has settled this matter relatively outspokenly, e.g.

“the freedom to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief” is expressly recognized by the 1981 UN Religious Tolerance Declaration.

Non-interference by state: e.g. also conform the European Court of Human Rights in Serif v. Greece (1999): state is, plain and simply, is not to meddle in appointment of religious leaders, that’s a church prerogative.

In a sense, it can be maintained that collective freedom of religion + religious association here always trumps any non-discrimination concerns. This would also mean that the state must stomach appointment practices that the state considers mysogonist or homophobic

NB: a note on the terminology: I constantly speak in terms of equality or non-discrimination jargon, when I am arguing from the perspective of the state: it is the state and Equality Bills and Equality machinery, such as Ombudsmen and Equality Commissions, etc, that could perceive of certain practices as discriminatory on the face of it. Of course, when we are looking from the perspective of religious organizations, the main frame of reference will be internal autonomy and collective freedom of religion. That is to say, the organization may do something not necessarily to actively, deliberately, or even knowingly, discriminate. In fact, if the organization would be right in asserting that some practice belongs to its internal autonomy, the question is whether we should speak of discrimination and possible exceptions, or whether we should conclude that there are reasonable and objective factors that cause that we are not dealing with discrimination in the first place, but with church autonomy. That all said, I stick to the exemptions and exceptions jargon, as the reality is that both international monitoring bodies, domestic courts, and domestic regulations, that dominate the discourse now use that type of terminology (as we will see later on in my presentation).

Other employment settings

In all other employment areas (hiring & firing of personnel), i.e. those where the link between the position and the religion is more remote, human rights law is somewhat more undecided; a case-by-case assessment of clashing interests is necessary: typically: non-discrimination vs. collective freedom of religion + right to freedom of association (i.e. internal autonomy claims).

Let’s start off by indicating that autonomy claims have certainly been respected by human rights monitoring bodies, but that at the same time there is hardly a consistent line of jurisprudence to be discerned.

Let’s look at one example: teachers at religious schools: May a school take steps against a teacher who deviates from religious orthodoxy or from the school’s specific religious standpoints or religious mission statement? This issue was put before the Human Rights Committee in Delgado Páez v. Columbia. William Eduardo Delgado Páez was appointed and functioned as a teacher of religion and ethics at a secondary school in Leticia, Colombia. However, being an advocate of ‘liberation theology’, his views on how these religion classes should be run differed from the views of the local ecclesiastical and educational authorities. At some point he was informed that he could no longer teach religion classes and ultimately the incident and subsequent discontent resulted in Mr. Delgado’s resignation.[iv] The Human Rights Committee concluded that the requirements posed by the ecclesiastical and educational authorities to teach the Catholic religion in its traditional form did not violate Mr. Delgado’s right to freedom of expression or freedom of religion or belief.[v] From this case the rule may be deduced that anyone who voluntarily becomes an employee of a denominational school may, to a reasonable extent, be required to abide by this organization’s ethos.[vi] This case, in short, is rather on the side of autonomy. Also according to some recent cases before the European Court of Human Rights (e.g. Obst and Scuth), matters that are religiously significant, religious orthodoxy and teachings, remain largely with the religious employer.

Such case by case assessment is probably precisely what is desired in this type of contentious cases, but it rather begs the general question how far does religious autonomy stretch? It is European state practice, informed by EU Regulations to make matters even more complicated, that has started to set out some “general solutions” to this issue.

An EU Council Directive entitled “Employment Framework Directive” of 2000 indicates two types of possible exceptions to equality law in employment matters:

(i) so-called ‘genuine occupational requirements’;

(ii) the preservation of an ‘institutional religious ethos’.

(i)         Genuine Occupational Requirements

It stands to reason that if being of a certain religion is absolutely essential to appropriately carrying out the tasks and responsibilities of a certain job that religious affiliation may be made a precondition for obtaining that job. In this context we may speak of so-called ‘genuine occupational requirements’. An occupational requirement is only ‘genuine’ if there is an evident link between the nature of the work and the religious affiliation in question. A simple preference on the part of the employer for someone of a certain religion would clearly not suffice, nor would a prejudice on the part or the employer against certain religions. Thus it will be clear that a genuine occupational requirement can only apply to a limited amount of positions. Actual ecclesiastical positions, naturally, fall within this category (the right of religious groups to freely appointment their religious leaders is also directly protected by the norms on freedom of religion).[vii] In the latter respect, it may be considered that the distinctive treatment on the ground of religion is actually perfectly ‘objective and reasonable’ and would thus not amount to discrimination.[viii] Any type of job that is not of a clear-cut clerical nature would not automatically justify posing religion as an occupational requirement. The ‘easy cases’ when it comes to positions that do certainly not merit a religious occupational requirement involve such positions as cleaning personnel, janitors, secretarial personnel, catering staff,[ix] etc. The requirements posed for all those positions in between these two extremes, naturally, are the most difficult to judge. This is further complicated by the fact that the state is not in a position to make close assessments as to whether belonging to a religion is truly essential in the discharge of certain functions and positions within these organizations, as too intrusive an examination to that effect may encroach upon these organizations’ religious autonomy.

A good example of state practice in this area is the fairly recently adopted British legislation[x] (largely intended to implement the mentioned EU Council Directive on the same issue)[xi] which exempts employers from the general prohibitions on religious discrimination if:

(a) being of a particular religion or belief is a genuine and determining occupational requirement;

(b) it is proportionate to apply that requirement in the particular case; and

(c) either:

(i) the person to whom that requirement is applied does not meet it, or

(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it…[xii]

This genuine occupational requirement exemption can be applied both to employers that have an ethos based on religion or belief (religious organizations, charities, etc.) and to those that have not (e.g. a non-denominational private hospital that wishes to hire the services of a chaplain).

Similar genuine occupational requirement schemes can be found in the laws of:[xiii] Austria,[xiv] Belgium,[xv] Bulgaria,[xvi] Canada,[xvii] Cyprus,[xviii] Czech Republic,[xix] Denmark,[xx] Finland,[xxi] Germany,[xxii] Greece,[xxiii] Hungary,[xxiv] Ireland,[xxv] Italy,[xxvi] Latvia,[xxvii] Luxembourg,[xxviii] Malta,[xxix] New Zealand,[xxx] Norway,[xxxi] Poland,[xxxii] Portugal,[xxxiii] Slovakia[xxxiv] and the United States of America.[xxxv]

(ii)        Religious Ethos Exception

A number of European states that have adopted religious ethos exemption schemes that grant certain types of employers a far more flexible, if not, unconditional permission to discriminate on the basis of religion in their hiring policies. These exemptions are not granted because being of certain religion is inextricably linked up with the position at hand (and thus absolutely necessary in order to fulfil the tasks and responsibilities that come with the position) but rather with a view towards accommodating those organizations that wish to maintain their ‘religious identity’.

The earlier mentioned EU Directive sanctions religious ethos exceptions, though does not prescribe them, which explain the still diverse European practice in this regard. The earlier discussed British legislation[xxxvi] does provide for such an exemption.[xxxvii] The religious ethos clause in question is largely similar to the above quoted genuine occupational requirement provision with the crucial difference in phrasing being that the word “determining” (before “occupational requirement”) is omitted.[xxxviii] This, as Vickers argues, would suggest:

…a less rigorous approach in deciding whether the particular job requires a particular characteristic than that required by [the general genuine occupational requirement clause], where the emphasis is clearly on the nature of the job itself. In relation to religious employers it may be possible to argue that a workplace is, for example, Muslim or Hindu, because its staff are all from the same religion, and it operates according to a religious ethos. Such a religious employer would be able to require that all staff share that religion, even categories of staff…for whom religion is not a determining requirement. This type of employer currently exists, for example, Christian medical practices, which run their workplaces according to Christian principles…Under [the] wider religious ethos exception it appears that such discrimination will continue to be allowed.[xxxix]

Similar types of religious ethos exemption schemes can be found in the laws of: Austria,[xl] Belgium,[xli] Bulgaria,[xlii] Cyprus,[xliii] Denmark,[xliv] Germany,[xlv] Greece,[xlvi] Hungary,[xlvii] Ireland,[xlviii] Italy,[xlix] Latvia,[l] Luxembourg,[li] Malta,[lii] Malaysia,[liii] Netherlands,[liv] Poland,[lv] Singapore,[lvi] Slovakia,[lvii] and Spain.[lviii]

Ireland’s religious ethos exemption scheme goes actually much further than the EU Directive allows as it only requires the differential treatment to be ‘reasonable’ (i.e. not genuine or determining). Ireland’s religious exemption scheme has been criticized by the Human Rights Committee because the state allows organizations that provide important public services (e.g. medical institutions which are under the direction or control of a body established for religious purposes) to avail of it.[lix] The Belgian, Bulgarian and Dutch religious ethos exemption schemes, are striking as the threshold for granting the exemption is not significantly lowered in comparison to their genuine occupational requirement schemes. It is thus clear that the latter states have refused to copy verbatim the broader religious ethos exemption as provided by the mentioned EU Employment Framework Directive.[lx]

Discrimination on Other Grounds for Religious Reasons: Multidimensional Discrimination

The EU Council Directive makes very clear what forms of discrimination are sanctions and which forms not; or put more positively, the EU Directive indicates clearly where religious autonomy starts and where it ends. The Directive provides that religious ethos exemption schemes “should not justify discrimination on another ground [than religion or belief]” (art. 4, para. 2). Here we are talking about multi-dimensional discrimination: may employers may, for (alleged) religious reasons, discriminate on grounds other than religion, for instance on the grounds of gender or sexual orientation? The EU Directive answers in the negative. Religious employers may make distinctions on the basis of religion, not on the basis of other human characteristics for religious reasons.

Turning to relevant state practice, the religious ethos exception provided by Slovakia’s Equality Law is a good example of an exemption scheme that actually sanctions distinctive treatment on the basis of sex or sexual orientation by organizations and other legal entities whose activities are based on religion or belief, in matters related to employment.[lxi] Ireland’s religious ethos exemption scheme is not limited to distinctions based on religion or belief either.[lxii] Norwegian law explicitly sanctions discrimination on the basis of sexual orientation by and within religious communities in the working environment:

Discrimination on the basis of homosexual [forms] of cohabitation in connection with appointment in posts associated with religious communities, where special requirements based on the nature of the post or the purpose of the activities of the employer are specified in the advertisement of the vacant post, shall not be in contravention of the prohibition against discrimination on the basis of sexual orientation. [lxiii]

The British regulations similarly provide for a religious ethos exemption scheme to facilitate derogations from the general rule of non-discrimination on the basis of sexual orientation in employment matters within organized religion.[lxiv]  

Membership

Next question is, may religious organizations make distinctions between people on the basis of religion in terms of membership criteria. Membership would seem to be an internal issue par excellence, and state interference would seem to be at odds with organizational autonomy rights plus collective freedom of religion most of the times. Some states have legislation in place to make this clear and explicit. E.g.: in the UK, religious organizations as well as charities may restrict membership of the organization on grounds of religion or belief in accordance with the Equality Act (See artt. 57 and 60 of the Equality Act of 2006, Law c.3/2006). This does not, however, apply to those organizations, though formally of a religious nature, whose sole or main purpose is commercial. Membership restrictions on grounds of religion or belief in this context may be considered ‘objective and reasonable’.

Accommodation of organizational autonomy is far-reaching in this area, and may even trump equality rights in conjunction with political rights. Take the case of Arenz v. Germany before the Human Rights Committee: Arenz, a member of Scientology, could not become a member of CDU (the German Christian Democratic Party). The Human Rights Committee was of the view that the state cannot dictate how religious organizations, including political alignments, are to choose their members. In Paul Arenz et al v. Germany, the Human Rights Committee considered that the policy of giving priority to the principle of party autonomy over a person’s wish to be a member in a political party that does not accept him or her due to membership in another organization of ideological nature, falls within the margin of appreciation of the state and ultimately deemed the case inadmissible.[lxv] In sum, the right to take part in the conduct of public affairs does not seem to include an absolute right to join a political party of one’s choice, the underlying rationale being that a residual right is always available: the freedom to found one’s own political party. 

However, again the limits of religious autonomy appear to be transgressed in the case of multi-dimensional discrimination: CEDAW has repeatedly argued in the past that the reluctance of the Netherlands to take actions against the SGP (i.e. stop the public funding), an orthodox Protestant political party founded in 1918 which until very recently restricted party membership to men allegedly on account of biblical motives, was in violation of the Covenant (See CEDAW Committee’s Concluding Observations: A/56/38 part II (2001) 63 at para. 219; and CEDAW/C/NLD/4, pp. 47–48). Clearly, also for Christian women a residual right to found their own political party was at all times available; however, for CEDAW that did apparently not remedy the situation.

It appears that for different human rights monitoring bodies (at the level of the UN as well as at the European level), religious discrimination by religious organizations can be considered reasonable and objective and thus even seize to be discrimination/or at least can reasonably be exempted from necessary state interference in the area of its equality agenda; however, in the 21st century, it seems signalled by these bodies, discrimination against women on the basis of sex, or discrimination against homosexuals on the basis of sexual orientation, although the religious reasons may seem objective, is simply not reasonable anymore. Top me this appears to be a matter of principle: I don’t think these bodies are as naïve to think that they hereby eradicate these practices, I think they do not want to see states actively accommodating or expressly sanctioning these practices.

IV. Services

A related question is whether religious organizations may limit their services to people adhering to the same religion. UK law serves as a useful example as it explicitly allows religious organizations and charities to restrict their services to people adhering to the religion in question (see art. 57, para. (3), and art. 58 of the Equality Act of 2006, Law c.3/2006). Some treaty monitoring bodies have criticized the laissez-faire attitude on the part of the state towards education for other, perhaps even more fundamental reasons. Whenever the state fails in its positive duty to provide sufficient non-denominational state schools, the state may be actively – albeit perhaps inadvertently – contributing to religious segregation. The Committee on Economic, Social, and Cultural Rights, for instance, assessing the educational system in Northern Ireland, observed that public schools in the region are:

heavily segregated, with most Protestants attending Protestant schools and most Catholics attending Catholic schools and only approximately 2 per cent of the school population attending integrated schools. The…current government policy, which appears to consist of a willingness to consider the conversion of existing Protestant or Catholic schools into integrated schools if it is the wish of the majority in a given school, is ineffective and likely to preserve the status quo.[lxvi]

The Human Rights Committee recently reproached Ireland, observing that:

the vast majority of Ireland’s primary schools are privately run denominational schools that have adopted a religious integrated curriculum thus depriving many parents and children who so wish to have access to secular primary education…The State party should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party.[lxvii]

If the state fails in its positive obligation to provide non-denominational education, by for instance – as would in practice often be the case – maintaining historical church prerogatives in this area, then various educational and religious rights are inevitably infringed.[lxviii] Ireland’s Equality Act allows denominational schools, which are virtually all Catholic, to refuse admission to pupils who do not adhere to the denomination in question. This rule is based on the arbitrary grounds of preserving the religious ‘ethos of the school’.[lxix] Such a system seems to foster serious human rights violations for various reasons. First, given the lack of secular state-run schools and the possibility that children of non-religious parents are turned away by denominational schools, no appropriate form of education may be available to these children. Still further, secular parents who prefer religious education over no education at all might feel compelled to obtain the necessary religious affiliation, for example, by means of conversion or baptizing their children to meet enrolment requirements.[lxx]

The OSCE/ODIHR Guidelines on religion & law, p. 15–16, convincingly argue that the legitimacy of restrictions in this field depends on whether there are solely religious or also public services (and tax money) at stake: “Although differential treatment may be permissible, it is appropriate to draw attention to the competing values of religious autonomy for institutions and the right of citizens to be free from discrimination on the grounds of religion, especially when the employers receive public financing or tax deductions for their activities”.

More questionable, again, would be service restrictions on the grounds of sex or sexual preferences for (alleged) religious reasons. One can think of Catholic adoption agencies that refuse to place children with homosexual couples.




[i] International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, of 16 December 1966 (entered into force: 23 March 1976) [hereinafter International Covenant on Civil and Political Rights or ICCPR].

[ii] This list draws on some of the freedoms that are enumerated in art. 6 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981), of 25 November 1981 [hereinafter: “UN Religious Tolerance Declaration (1981)”]; some of these points are also mentioned in: Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18), CCPR/C/21/Rev./Add.4 (1993), para. 9 [hereinafter: General Comment 22], para. 4.

[iii] See para. 3 of art. 18 and para. 2 of art. 22 ICCPR.

[iv] Delgado Páez v. Colombia, supra note Error! Bookmark not defined.; see paras. 2.1–2.10 for the particulars of the case.

[v] Ibid. paras. 5.7–5.9. The Committee did ultimately establish a violation of art. 25, para. (c), of the ICCPR as it considered that the constant harassment and the threats against his person (in respect of which the state party had failed to provide protection) made the author’s continuation in public service teaching impossible (para. 5.9) (something that clearly was specific to this case).

[vi] Some states have laws in place to guarantee this. E.g. art. 60, para. (5)(b), of the UK School Standards and Framework Act 1998 (c. 31), which deals with schools with a religious character and provides that “regard may be had, in connection with the termination of the employment of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified”.

[vii] See art. 6, para. (g), of the UN Religious Tolerance Declaration (1981).

[viii] The relevance being that if that is indeed the case, we may not, strictly speaking, refer to these cases as instances that can legitimately be exempted from the ramifications of the equality principle, but rather as instances that do not amount to unequal treatment in the first place.

[ix] As far as the latter position is concerned, it is not unimaginable that knowledge of certain religious dietary needs, such familiarity with halal or kosher food, can be posed as a requirement for certain positions within certain institutions.

[x] The Regulations do not apply to Northern Ireland which since long has its own, similar, regulations in place (Fair Employment and Treatment Order of 1998).

[xi] Art. 4, para. (1), of Council Directive 2000/78/EC (“Employment Framework Directive”) of 27 November 2000.

[xii] Art. 7, para (2), of the Employment Equality (Religion or Belief) Regulations, No. 1660/2003, of 26 June 2003.

[xiii] The following overview is largely indebted to the country reports on measures to combat discrimination drafted by the EU Legal Expert Network (2007).

[xiv] Art. 20, para. (1), of the Federal Equal Treatment, State Law 66/2004, which deals mainly with private employment. And art. 13b, para. (1), of the Act Amending the Federal Equal Treatment Act, State Law 65/2004, which deals mainly with federal public employment (both Acts use the phrase “eine wesentliche und entscheidende berufliche Voraussetzung”).

[xv] Art. 8 of the Law Combating Certain Forms of Discrimination, BS 30 V 07, of 10 May 2007.

[xvi] Art. 7, para. (2), of the Law on the Protection against Discrimination, 199/2003 (entered into force: 1 January 2004).

[xvii] Art. 15, para. (1)(generic occupational requirement exception), of the Canadian Human Rights Act, R.S., 1985, c. H-6.

[xviii] Section 5(2) of the Law on Equality of Treatment in Occupation and Employment, No.58 1/2004.

[xix] Art. 16, para. (3), of the Labour Code, No. 46/2004; and art. 4, para. (3) of the Law on Employment, No. 435/2004.

[xx] Art. 6 of the Act on Equal Treatment in Employment and Occupation, No. 459/1996 (amended 2004).

[xxi] Art. 7, para. (1), of the Non-Discrimination Act, No. 21/2004.

[xxii] Art. 8 of the Law on the Transposition of European Anti-Discrimination-Directives, BGBl. I, 1897, of 14 August 2006 (amended Dec. 2006).

[xxiii] Artt. 5 and 9 of the Law on the Implementation of the Principle of Equal Treatment, No. 3304/2005, of 27 January 2005.

[xxiv] Art. 22, para. (1)(a), of the Law on Equal Treatment and Promotion of Equal Opportunities, No. CXXV/2003, of 28 December 2003.

[xxv] Art. 37, para. (2), of the Employment Equality Act, No. 21/1998.

[xxvi] Art. 3, para. (3), of Decree No. 216 of 9 July 2003.

[xxvii] Para. (9) of art. 29 read in conjunction with para. (2) of the same article of the Labour Law of 2002 (amended through 2006).

[xxviii] Article 18 of the Law [transposing EU Directive 2000/78 into domestic law] of 28 November 2006 (this law effectively inserts a new article, art. L-252-1 (1), into the Labour Code).

[xxix] Sec. 4 of the Equal Treatment in Employment Regulations, No. 461/2004.

[xxx] Art. 28, para. (2)(b)(i), of the Human Rights Act 1993, Act No. 82 (amended through 3 December 2007).

[xxxi] Art. 13(3), para. (1), of the Working Environment Act of 1977 (amended through 2007).

[xxxii] Art. 18(3b), para. (2), of the Labour Code of 26 June 1974 (amended through 2003).

[xxxiii] Article 23, para. (2), of the Labour Code, Law No. 99/2003 (amended by Law 35/2004).

[xxxiv] Art. 8 of the Act on Equal Treatment in Certain Areas and Protection against Discrimination, Law No. 365/2004.

[xxxv] Title VII of the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241, in the American juridical doctrine and jurisprudence commonly described as a ‘bona fide occupational requirement’.

[xxxvi] Art. 7, para (3), of the Employment Equality Regulations (ibid.).

[xxxvii] Art. 4, para. (2), of Council Directive 2000/78/EC of 27 November 2000.

[xxxviii] Compare para (2) and para (3) of art. 7 of the Employment Equality Regulations (supra note 12); the latter clause, moreover, stipulates that when the different tests (proportionality test, etc.; see paras. a–c) are applied, regard must be had “to that ethos and to the nature of the employment or the context in which it is carried out”. The latter further suggests that a fair degree of discretion and flexibility in applying these exemptions is intended.

[xxxix] Lucy Vickers, Freedom of Religion and the Workplace: The Draft Employment Equality (Religion or Belief) Regulations 2003, 32(1) Industrial Law Journal 23 (2003), pp. 27–28.

[xl] Art. 20, para. (2), of the Federal Equal Treatment, State Law 66/2004, which deals mainly with private employment; and art. 13b, para. (2), of the Act Amending the Federal Equal Treatment Act, State Law 65/2004, which deals mainly with federal public employment (both Acts use the phrase: “eine wesentliche, rechtmäßige und gerechtfertigte berufliche Anforderung angesichts des Ethos der Organisation”; in other words, the word “entscheidende” (decisive), as used in the provisions on genuine occupational requirements,  has been omitted).

[xli] Art. 13 of the Law Combating Certain Forms of Discrimination, BS 30 V 07, of 10 May 2007.

[xlii] Art. 13, para. (3), of the Law on the Protection Against Discrimination, 199/2003 (entered into force: 1 January 2004).

[xliii]Article 7 of the Law on Equality of Treatment in Occupation and Employment, No.58 1/2004.

[xliv] Art. 6 of the Act on Equal Treatment in Employment and Occupation, No. 459/1996 (amended 2004).

[xlv] Art. 9 of the Law on the Transposition of European Anti-Discrimination-Directives, BGBl. I, 1897, of 14 August 2006 (amended December 2006).

[xlvi] Art. 9, para. (2), of the Law on the Implementation of the Principle of Equal Treatment on Anti-Discrimination, No. 3304/2005, of 27 January 2005.

[xlvii] Art. 22, para. (1)(b), of the Law on Equal Treatment and Promotion of Equal Opportunities, No. CXXV/2003, of 28 December 2003.

[xlviii]Art. 37, para. (1), of the Employment Equality Act, No. 21/1998.

[xlix] Art. 3, para. (5), of Decree No. 216 of 9 July 2003.

[l] Labour Law of 2002 (amended in 2006).

[li] Article 18 of the Law [transposing EU Directive 2000/78 into domestic law] of 28 November 2006.

[lii] Sec. 4 of the Equal Treatment in Employment Regulations, No. 461/2004.

[liii] Art. 8, para. (5)(b), of the Const. of Malaysia (1957).

[liv] Art. 5, para. (2), of the General Equal Treatment Act of 1994 (amended 2004) (which is not, strictly speaking, formulated as religious ethos exemption as such, but it certainly resembles one).

[lv] Art. 18(3b), para. (4), of the Labour Code of 26 June 1974 (amended through 2003).

[lvi] Art. 12, para. (3)(b), of the Const. of Singapore (1963).

[lvii] Art. 8, para. (2), of the Act on Equal Treatment in Certain Areas and Protection against Discrimination, Law No. 365/2004.

[lviii] Art. 34, para. (2) of Law No. 62/2003 of 30 December 2003 on fiscal, administrative and social measures.

[lix] A/55/40 vol. I (2000) 61 at para. 443.

[lx] See, e.g., Olivier De Schutter, Country Report Belgium: Report on Measures to Combat Discrimination (Directives 2000/43/EC and 2000/78/EC) (EU Legal Experts Network, 2007), p. 64, for a description of the legislative history regarding this provision in Belgium.

[lxi] Art. 8, para. (2), of the Act on Equal Treatment in Certain Areas and Protection against Discrimination, No. 365/2004. This is also contrary to the EU Council Directive (supra note 11) as the latter makes clear that the difference in treatment “should not justify discrimination on another ground [than religion or belief]” (art. 4, para. 2).

[lxii] Compare sections (a) and (b) of para. (1) of art. 37 of the Employment Equality Act, No. 21/1998.

[lxiii] Art. 13(3), para. (3), of the Working Environment Act of 1977 (as amended through 2007).

[lxiv] A requirement related to sexual orientation can be applied so as to comply with “the doctrines of the religion” or so as to avoid conflict “with the strongly held religious convictions of a significant number of the religion’s followers”. See art. 7, para. (3), of the Employment Equality (Sexual Orientation) Regulations, No. 1661/2003.

[lxv] Human Rights Committee, Paul Arenz et al v. Germany, Communication No. 1138/2002, U.N. Doc. CCPR/C/80/D/1138/2002 (2004), Decision of 24 March 2004.

[lxvi] E/1998/22 (1997) 56 at para. 301 (UK); reiterated in 2002: E/2003/22 (2002) 39 at paras. 226 and 245 (UK).

[lxvii] CCPR/C/IRL/CO/3 (2008), para. 2 [Ireland].

[lxviii] See Alison Mawhinney, Submission to the Human Rights Committee with Respect to the Third Periodic Report of Ireland [NGO Information], March 2008; this shadow report is a response to U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/IRL/3, paras. 409-11

[lxix] Art. 7, para. (3)(c) of the [Irish] Equal Status Act, No. 8/2000.

[lxx] Both problems are reported in the mentioned shadow report, above n. 68, at 2, 4; similar concerns have been raised by the Committee on the Elimination of Racial Discrimination in its Conclusion Observations: A/60/18 (2005), para. 142 [Ireland].


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