Mill's 'harm principle' forms the basis of many of our legal principles, particularly when viewed from the perspective of a liberal critic. This harm principle, which states that the law should only regulate behaviour to prevent harm to others, has a particularly strong case when considering anti-discrimination law, which exists primarily to prevent people from suffering the effects of both direct and indirect discrimination - direct being when a rule singles a group out for unfavourable treatment (think segregation or denying service to gay customers), and indirect being when an apparently neutral rule has a disproportionate impact on a minority group (for example, literacy qualifications for voting may disproportionately harm immigrants or minorities from low-education backgrounds). The harm principle underpins much of anti-discrimination law, but when it comes to certain areas, the law seemingly abandons it and takes a different approach, and these shall be examined in this post.
Religious exemptions from anti-discrimination law
Religious exemptions from anti-discrimination law are nothing new. In the European Union, one of the fountains of anti-discrimination law, the Employment Equality Directive permits exceptions to these laws for the "protection of the rights and freedoms of others, and it also permits religious organisations to use discriminatory hiring practices to, for example, prevent the hiring of atheists in a mosque, or prevent a married gay man from becoming a Catholic priest, for the purpose of requiring "individuals working for them to act in good faith and with loyalty to the organisation's ethos." Religious exemptions exist in numerous areas, including in faith schools which have the right to admit students and faculty only who are of the same faith (though not to unfairly limit applicants on ethnic grounds, such as through using a matrilineal test of 'genetic' Jewish-ness, as in the case of R v JFS).
This right is not limited, however: in the Canadian case of Trinity Western University v Law Society, the Supreme Court held that the Law Society's denial of accreditation to the university on the basis of its anti-homosexual policies was not a violation of the right to freedom of expression - indeed, the court held that there was no evidence that Christians were adversely affected by the Law Society's decision, but evidence that LGBTQ+ individuals would have been had the decision been made to award accreditation. Such limits on religious exemptions allow for the traditional conception of the harm principle to be reinstated in the realm of anti-discrimination law.
Religious exemptions exist in anti-discrimination law even to govern other areas, such as tort. The Employment Act of 1989 in the UK exempts Sikhs from requirements to wear safety helmets on construction sites, due to their religious requirement of wearing a turban, with the result that if the Sikh were harmed, the employer would not be liable in tort for any excess damage caused as a result of him not wearing a safety helmet. Here again, the law balances the harm principles of both the parties: requiring the Sikh to wear a helmet would harm his religious autonomy and deny him a job, whereas allowing him not to wear a helmet with no limit on tortious liability for the employer would harm the employer's economic interests unfairly.
Policing of religious clothing
We have already seen a small exemption to the policing of religious clothing by anti-discrimination law in the form of Sikhs not being required to wear helmets on construction sites, but when it comes to the question of other forms of religious clothing, the law is perhaps less fair in their balancing of the competing harm principles.
Over the past few years, the world (and particularly Europe) has seen a wave of Islamophobia, often coupled with attempts to police religious clothing, with a specific focus on the dress of Muslim women. For example, Law No. 2004-228 in France prohibits the wearing of signs or dress in schools by which pupils overtly manifest a religious affiliation, with the consequence that small Christian crosses which may be easily concealed are permitted, but Jewish skullcaps, Muslim headscarves and Sikh turbans are not permitted - a convincing case of statutory indirect discrimination against religious minorities. But the passage of law is not the only way in which religious clothing has been restricted in Europe.
While Eweida, who worked for an airline, was permitted to wear a Christian cross, with the court holding that there was no evidence that the wearing of items of religious clothing had any negative impact on British Airway's brand or image, when it comes to Muslim women, the law is more authoritarian. The case of Dahlab v Switzerland in the ECtHR prohibited a teacher from wearing an Islamic headscarf on the basis that, while it had never been established that her clothing had any impact on pupils, the court weighed Dahlab's right to manifest her religion against the need to protect pupils by promoting "religious harmony". Clearly, religious harmony in this case was not a question of religious pluralism and equality, but conformation to the archetypical Christian model of religious dress. Similarly in the case of Leyla Sahin v Turkey, the ECtHR held that the suspension of a student from university for wearing a Muslim headscarf was "justified and proportionate", as the "principle of secularism [was] the paramount consideration" underlying the ban on the wearing of religious symbols in Turkish universities. It is difficult to imagine, in these cases, how the harm caused by restricting one's religious freedom is outweighed by the harm their manifestation of their religion would cause to others, and so the European jurisprudence seems to have abandoned the harm principle in relation to the policing of, and only of, Muslim women's clothing.
Judge Tulkens dissented in the Leyla Sahin case, arguing that in a democratic society, it is necessary to seek to harmonise the principles of secularism, equality and liberty, and not to weigh them against each other, but, unfortunately for liberal thinkers, Tulkens forms the minority in this area of the law. Despite attempts by the ECtHR and other European courts to soften their rhetoric when it comes to this issue, by writing that "the wearing of religious signs is not inherently incompatible with the principle of secularism" in Dogru v France or that "the role of the authorities ... is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other" in Leyla Sahin, the point remains that Muslim women are less protected by the law more so than other groups.
Wintemute, in his essay 'Accommodating Religious Beliefs', draws on the harm principle in his analysis of "the challenge for human rights" which "is to allow the religious individual to participate to the greatest extent possible in public life, while ensuring that particular manifestations of their religious beliefs do not have the effect of imposing their beliefs on others." Wintemute proposes a 'liberty' approach to anti-discrimination law, which would replace the 'equality' notions that require a comparator to find the unfair treatment (direct or indirect discrimination) with either an active interference with manifestations of religious belief, or a passive failure to accommodate manifestations of religious belief, though he concedes this hasn't received much traction in the ECtHR. By using this liberty approach to anti-discrimination law, Wintemute suggests three cumulative conditions should be satisfied in order to require an accommodation to be made as to the expression of religious belief: (i) the particular manifestation itself causes no direct harm to others (e.g. it is not offensive); (ii) the required accommodation involves minimal cost, disruption or inconvenience to the accommodating party; and (iii) the requested accommodation will cause no indirect harm to others. Specifically, Wintemute notes the "shocking implication" in ECtHR jurisprudence "that a Muslim woman's headscarf conveys a message of intolerance, disrespect for others, inequality and discrimination" - something that not only defies the harm principle underpinning anti-discrimination law, but that belies deeper set prejudices that undermine the role of Muslim women in a pluralistic, democratic and egalitarian society.
The conflict of rights
The conflict of rights, therefore, raises a larger question, particularly outside the context of employment and in the retail space. For example, the famous 'gay cake' cases where Christian bakers have refused to produce wedding cakes for homosexual couples, or refused to print pro-LGBTQ+ slogans on baked goods. Wintemute argues that such cases cause direct harm to others, by denying them a service for a prohibited reason to their face. He notes that while it may seem unfair to characterise sincere religious beliefs as a "deliberate refusal to serve others", this would be entirely consistent with UK law, which has deemed irrelevant a benign motive on the part of the discriminating party. Indeed, in the cases of direct discrimination [Nagarajan v London Regional Transport] and indirect discrimination [Griggs v Duke Power], courts across the world have consigned to irrelevance any malicious or benign intent on the part of the discriminator: what matters is that the harm has been caused to the victim.
The question would therefore be to what extent should religious individuals be exempt from anti-discrimination law that exists to protect other minority groups, for example, the LGBTQ+ community? The ECtHR in the cases of Ladele and McFarlane vindicated the UK courts' approach, which refuse to grant religious exemptions for individuals who wish to discriminate on the basis of sexual orientation. The US courts have been less sympathetic to the LGBTQ+ community's harm principle approach, or (according to the dissenting judges in Ladele), have been less favourable to non-fundamental gay rights over the fundamental human right of freedom of religion, thanks to their lack of 'blinkered political correctness'. Though, as LGBTQ+ legal scholar Kyle Vente told me in the podcast companion to this blog post, they have also failed to tackle the big issue of the conflict of rights between LGBTQ+ anti-discrimination laws and religious freedom.
Many scholars are calling for a rethinking of anti-discrimination law, from the 'liberty' and harm-based approach favoured by Wintemute, to a foundation based on social stigma proposed by Solanke, but for now, the principle of equality and comparison underpins modern anti-discrimination jurisprudence, and while it may be unhelpful when the list of protected characteristics is too narrow (as we saw prior to the inclusion of pregnancy and LGBTQ+ identity in the Equality Act 2010), the current approach has served us well so far - it just depends on the jurists who rule on it.
Sources:
- John Gardner, 'Liberals and Unlawful Discrimination' (1989) 9 Oxford Journal of Legal Studies 1
- Robert Wintemute, 'Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusal To Serve Others' (2014) 77 The Modern Law Review 2
- Iyiola Solanke, 'Infusing the Silos in the Equality Act 2010 with Synergy' (2011) 40 Industrial Law Journal 4
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