An exemption that makes it possible for religious-run institutions to opt out of certain provisions of equality legislation is in need of reform, writes Mark Coen
Legislative developments in Ireland over the last 30 years, such as the Unfair Dismissals Act and, more recently, the Employment Equality and Equal Status Acts, have sought to build and promote equality of access and opportunity in employment, as well as equal treatment for consumers of services.
A parallel development over the same period has been the decline of the Catholic Church and its consequent loss of authority and influence.
These developments form the backdrop to Section 37 of the Employment Equality Act, which provides for an exemption from equality for religious, educational or medical institutions under the control of a religious body.
In my opinion this exemption amounts to an overly broad interference with the privacy, personal autonomy and right to family life of employees in religious organisations. There is a clear case for reform.
Despite its decline in political and social authority, the church remains an important influence in education and healthcare. In the face of dwindling numbers, the question for religious trustees has become one of "ethos" - how best to promote and sustain their message in a secularising Ireland.
A number of well-known religious congregations, such as the Sisters of Mercy and the Presentation Sisters, have combined to form Ceist, a trust which will administer the voluntary secondary schools of the congregations concerned. Freedom of religion and the right of parents to have their children educated in a religious environment are guaranteed under the Constitution, and religious freedom is highly prized in any democratic society. At the time of the drafting of the Employment Equality Act, the exemption proposed for religiously-managed institutions led to much debate, and was opposed by The National Women's Council, the Irish Congress of Trade Unions (Ictu) and the Irish National Teachers' Organisation (INTO), among others.
Concerns were voiced that the enactment of such an exemption would enshrine in legislation the decision in the Eileen Flynn case of 1985, in which the dismissal of a teacher from a convent school because of her relationship with a married man was upheld by the High Court.
The exemption allows a religious, educational or medical institution under the control of a religious body to discriminate on the grounds of religion regarding employees or prospective employees.
Essentially, this permits a Protestant hospital to employ a Protestant nurse, or to promote a Protestant nurse in preference to a nurse of any other faith or none. A strong argument can be made that an exemption which permits a religious organisation to employ a co-religionist is a proportionate means of ensuring the integrity of a particular religious ethos.
It is also probable that this limb of the exemption is necessary because of the status given to denominational education in the Constitution.
Much more significant in terms of its potential ramifications, however, is the second part of the exemption, which permits an institution under religious management to take any action which is "reasonably necessary" to prevent an employee or prospective employee from undermining its ethos.
This provision of the Act is extremely wide-ranging. It is not limited to discrimination on the grounds of religion. The potential for the Act to be applied in a disproportionate manner is particularly marked where an employee does not conduct his or her private life in accordance with the tenets of their employer's religion.
The Catholic Church, for example, regards engagement in homosexual activity as inconsistent with being an adhering member of that religion. Unlike the provision permitting favourable treatment of co-religionists, the provision relating to "ethos" is not expressly restricted to religious grounds.
The ethos-based exception would thus appear to liberate religious institutions not only from discrimination on the basis of religion, but also on the basis of the eight other discriminatory grounds of the Act, including sexual orientation. Should the inspirational teacher, who takes his/her responsibilities seriously and has never criticised or disrespected the school's ethos, live in fear that if his/her relationship with a partner of the same gender becomes known, they may be removed from their job?
The exemption places certain employees in an unenviable position. Must they shield non-marital cohabitation or same-sex relationships from their employers? Does the exemption abrogate the general prohibition on invasive or discriminatory interview questions? In the context of education, how far may a teacher intervene to stop homo-phobic bullying or discuss sexual diversity?
The exemption has been upheld as constitutional by the Supreme Court. However, apart from stating that it would be for the courts to decide what action came within the rubric of "reasonably necessary" to prevent the undermining of an ethos, the exemption was subject to fairly cursory analysis by the court.
The Irish courts have been consistently deferential to religious interests. This approach was evident in the school chaplain's case, in which the Supreme Court emphasised the right of parents to have their children educated in a religious environment and appeared to denude the constitutional requirement that the State not endow any religion. It is logical to presume that a person appointed to work in a religious institution will uphold the ethos of that institution while at work, and any religious employer is entitled to expect this. It is the apparent desire by religious employers to demand conformity by employees in their private lives which is objectionable.
The current legislation appears to permit this, and thus represents a disproportionate interference with the right to privacy and personal autonomy. It can be argued that a person enters the employment of a religious institution voluntarily, and thus accepts the conditions associated with it. However, there is a clear distinction between the doctor in a Catholic hospital who advocates euthanasia in defiance of that hospital's ethos, and another doctor in the same hospital who conducts his/her work in accordance with the ethos, but who happens to cohabit with a same-sex partner.
In the former example the ethos of the hospital is undermined, in the latter it is not. If section 37(1) were amended so that it were clearly stated that the undermining of an ethos could only happen by virtue of the actions of an employee in the course of their employment, the anomalous and overly broad situation which pertains would be remedied.
The sweeping nature of the religious exemption in the Employment Equality Act is out of line with the European Framework Directive on Discrimination in Employment, which limits any derogation to religious faith only. It is also inconsistent with the jurisprudence of the European Court of Human Rights on the right to privacy. The provision has been criticised by the UN Committee on Human Rights. The fact that this is a live issue affecting real people is confirmed by the existence of a support group for lesbian, gay, bi-sexual and transgendered teachers within the INTO, which supports its members and campaigns for the repeal of section 37(1).
The law places employees - including heterosexual cohabitees - in an invidious position where they are employed by a religious organisation. No cases have arisen under the legislation so far but it has the effect of creating a climate of apprehension and uncertainty among those whose private lives are considered unorthodox by their religious employers.
A statement from the churches that they will not rely on the exemption would be a welcome first step towards a more inclusive equality. In the longer term reform is required.
Mark Coen is a Scholar of Trinity College, Dublin. This article is based on his essay which won the 2007 Law Society Reform Essay Competition