Mirror of Justice

Discrimination Law Against Discrimination Law?!

July 13th, 2009 at 03:01am Under Uncategorized

Very often on our courses, we illustrate the positive and negative pendulum that can hold sway in a diverse society. Positively, you make an improvement for one individual or a group and you secure a spin off benefit for those outside the group. Removing debris from a footpath will make things safer for those with mobility issues but also will enhance the environment and help those carrying shopping or even pushing a pram!

But sometimes, you make an improvement in one area and create tension, resentment, jealousy and at worse a severe backlash. The battle of the sexes, the perceived notion that “they” are getting more benefits than me and impatience with those less able is all part of this potentially poisonous cocktail! But nowhere it seems is this negative backlash more to the fore than between those who hold genuinely religious beliefs and those who wish to be free to live their lives under the law as gay, lesbian or bisexual individuals.

In recent months, there seem to have been an avalanche of claims reaching tribunals reflecting these theological and secular tensions. The overarching lessons emerging from what have been largely employers victories are to be found in common sense key questions:-

“Have you carefully considered the complaint or request in front of you?”

And if you have, has your response been:-

·        Reasonable?

·        Practical?

·        Proportionate?

Viewed against this backcloth, the following recent cases can be seen in real perspective:-

Miss Ladale v Islington Borough Council

The applicant, a devout Christian, was employed as a registrar with the local authority. Her duties included registering marriages. When the Civil Partnership Act 2004 was introduced in December 2005, all registrars were required to carry out civil partnership ceremeonies.These were generally shared out in approximately the same proportion as marriage duties. Miss Ladale refused to carry out these new duties. Initially, she won her claim of direct and indirect discrimination as well as harassment. But an essential part of the Employment Appeal Tribunal ruling which overturned the earlier victory is interesting:-

“ The Council was entitled to decide that Miss Ladale could not pick and choose which duties she would perform depending on her religious views, at least in circumstances where her personal stance involved discrimination on the grounds of sexual orientation.”

Gary McFarlane v Relate

Mr McFarlane was employed by Relate as a counsellor. He was trained by them to be a psychosexual therapist and his role in consequence was extended to giving advice on sexual problems encountered by couples.  He too was a devout and practicing Christian.  When he refused to give advice to same sex couples, he was initially suspended and ultimately dismissed for failing to uphold Relates equal opportunities policies. The tribunal ruled against him, with the telling comments:-

“His dismissal by Relate was a proportionate means of achieving the legitimate aim of maintaining its commitment to providing a service to all sections of the community without any suggestions of discrimination. Relate would have treated any other employee in the same way, who, for reasons unrelated to religion had acted in a way so at odds with its equal opportunity policy.”

Mohammed Ahmed v TESCO

Mr Ahmed, recruited by the supermarket giant, as a forklift truck operator refused to handle alcoholic goods as part of his duties. He is a devout Muslim and as such he said could not handle alcohol. TESCO, who won the case, said that on appointment Mr Ahmed had never raised such objections and was indeed told in his job interview   about the wide range of goods that were stored and subsequently sold in their supermarkets, including alcoholic drink.

John Mitchell v Strathclyde Fire Service

Mr Mitchell, a Christian fireman, was amongst a group of fire-fighters at a Glasgow fire station who refused to attend a gay pride march with some claiming that they were too embarrassed to attend in uniform and others saying that their presence would be “contrary to their moral beliefs”. They received a range of disciplinary sanctions from demotion to written warnings. The Fire Service decided to reach a settlement with Mr Mitchell in relation to his complaint, with an apology and an agreement to prevent him from discussing the case being part of the out of court settlement. This would have been an interesting case had it gone the whole way but it does point to the potential for “win-win” solutions outside the legislative framework.

“Win-Wins” have been secured in recent times in terms of:-

And, of course, the recent case of the Christian bus driver agreeing to drive buses with “No God” adverts only if no other vehicles were available. Other passenger transport authorities across the country have reached a similar compromise.

Many employment cases can be resolved on a “win-win” basis. But if they cannot, the overarching principles that lie paradoxically at the heart of any attempt at consensus will generally prevail in law. Namely, what is reasonable, practical and proportionate?

These are, of course, employment issues. Laws governing the provision of goods, facilities and services now embrace the religion & belief strand as well as sexual orientation and gender identity. It will be interesting in the months ahead if the same tensions between religious beliefs and the notion that the “customer is always right” prevail in this hard headed commercial environment?!

QED Training provides a wide range of courses on equality laws, diversity issues and cultural awareness linked to both employment and customer care. Get in touch if we can be of assistance to you.

qedworks.com

qed.training@ntlworld.com

CIVIL RIGHTS

July 11th, 2009 at 02:54pm Under Civil Rights Law

I  INTRODUCTION

Civil Rights and Civil Liberties, political and social concepts referring to guarantees of freedom, justice, and equality that a state may make to its citizens. Although the terms have no precise meaning in law and are sometimes used interchangeably, distinctions may be made. Civil rights is used to imply that the state has a positive role in ensuring all citizens equal protection under law and equal opportunity to exercise the privileges of citizenship and otherwise to participate fully in national life, regardless of race, religion, sex, or other characteristics unrelated to the worth of the individual. Civil liberties is used to refer to guarantees of freedom of speech, press, or religion; to due process of law; and to other limitations on the power of the state to restrain or dictate the actions of individuals. The two concepts of equality and liberty are overlapping and interacting; equality implies the ordering of liberty within society so that the freedom of one person does not infringe on the rights of others, just as liberty implies the right to act in ways permitted to others.

II  HISTORY

Wartime Discrimination in Canada Canadian naval officers at Esquimalt, British Columbia, confiscate a Japanese Canadian fisherman’s boat in 1941. During World War II the Canadian government confined thousands of Japanese Canadians and seized their assets.   The concept that human beings have inalienable rights and liberties that cannot justly be violated by others or by the state is linked to the history of democracy. It was first expressed by the philosophers of ancient Greece. Socrates, for example, chose to die rather than renounce the right to speak his mind in the search for wisdom. Somewhat later the Stoic philosophers formulated explicitly the doctrine of the rights of the individual (see Stoicism). Traces of libertarian doctrine appear in the Bible and in the writings of the Roman statesman Marcus Cicero and the Greek essayist Plutarch. Such ideas, however, did not gain a permanent place in the political structure of the Roman Empire and all but disappeared during medieval times.

A  Early Development

Bill of Rights Because the Constitution of the United States granted the federal government so much power, as compared with the earlier Articles of Confederation, several states demanded a list of amendments to guarantee individual rights against intrusion by the federal government. The first ten amendments, known as the Bill of Rights, embody libertarian ideas in the United States. The amendments protect such rights as freedom of speech (First Amendment), right against unlawful search and seizure (Fourth Amendment), and the right to a public criminal trial by jury (Sixth Amendment).  Individual freedom can survive only under a system of law by which both the sovereign and the governed are bound. Such a system of fundamental laws, whether written or embodied in tradition, is known as a constitution. The idea of government limited by law received effective expression for the first time in the Magna Carta (1215), which checked the power of the English king. The Magna Carta did not stem from democratic or egalitarian beliefs; rather, it was a treaty between king and nobility that defined their relationship and laid the basis for the concept that the ruler was subject to the law rather than above it. The development of constitutional government was slowed by the persistence of the ideas of absolutism, the belief that all political power should be in the hands of one individual, and divine right, which held that kings derived their power from—and were accountable only to—God. These beliefs were widely held throughout Europe until the 18th century. The notion that the people have the right to be asked to consent to acts of government did not arrive without a protracted struggle. The reigns of the Tudor and Stuart monarchs in England were marked by fierce conflicts between the Crown and Parliament.

On the European continent the struggle between authoritarian and libertarian principles developed around religious rather than secular issues. During the Reformation, freedom of religious belief and practice was a primary concern. Tolerance was rare; as late as 1612, for instance, members of the Unitarian sect were burned as heretics in England (see Unitarianism). Not until the end of the 18th century did the ideals of religious toleration become firmly established in Western civilization.

Boston Massacre Revolutionary wars in France, England, and the United States led to the incorporation of libertarian principles in the governments of each of these countries. Among these principles was the idea that people should have a voice in their country’s government. Before any of these principles could be written into the constitutions of these countries, however, each was ravaged by terrible wars. The Boston Massacre, as depicted in this print, was one of the smaller battles in the American Revolution. The event was not actually a massacre, but a street fight between a mob and a squad of British soldiers that ended with the death of five colonists. As a result of the English, American, and French revolutions, libertarian ideals were embodied in the structure of national governments. In England, the struggle between Parliament and the absolutist Stuart monarchs culminated in the so-called Glorious Revolution of 1688. King James II was expelled, and the new king, William III, gave royal assent (1689) to the Declaration of Rights (English Bill of Rights), which guaranteed constitutional government. Subsequently, the monarch’s prerogatives were limited by statute and custom. The idea of a constitutional system is described in the writings of the English philosopher John Locke, which profoundly influenced the leaders of the American colonies.

The 17th century was marked also by the growth of individual freedom in Great Britain. In the common law courts, for example, the judges became more concerned for the rights of those accused of crime, and procedural safeguards were established.

B  Spread of Civil Liberties

British colonists brought the concepts of limited government and individual freedom to the New World. The early laws of Virginia, Massachusetts, and other colonies reflected interest in the reform of criminal procedure that was emerging in Great Britain. A notable event in the history of civil liberties was the successful defense (1735) in New York by the Philadelphia lawyer Andrew Hamilton of the printer John Peter Zenger, who had been charged with seditious libel for criticisms of the colonial government in his publication the New York Weekly Journal. Hamilton established the principle that the government may not punish truthful publications of matters of public concern. See The Trial of John Peter Zenger.

The events leading to the American and French revolutions inspired writings that laid the foundations for modern ideas of civil liberties by such authors as the French philosophers Voltaire and Jean Jacques Rousseau, the British reformer John Wilkes and the philosopher Jeremy Bentham, the Anglo-American writer Thomas Paine, and the American statesmen Thomas Jefferson and James Madison. The Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights of the Constitution of the United States formally established libertarian principles as a foundation of modern democracy.

Although civil liberties are often considered an integral part of democratic government, the principles of limited government and personal freedom were developed in England at a time when political power was held by an aristocratic upper class. Similarly, in the American colonies, many founding fathers did not favor democracy in the modern sense. Indeed, the framers of the U.S. Constitution provided a method of electing the nation’s president that avoids a direct popular vote. Conversely, history offers numerous examples of countries in which political power is formally vested in representative assemblies, but enforcement of law is arbitrary or despotic, and minorities have few safeguards against the tyranny of majorities.

III  CIVIL RIGHTS AND CIVIL LIBERTIES IN THE UNITED STATES

The civil rights and liberties of U.S. citizens are largely embodied in the Bill of Rights (the first ten amendments to the Constitution) and in similar provisions in state constitutions. The First Amendment guarantees freedom of speech, press, assembly, and religious exercise as well as separation of church and state (see Speech, Freedom of; Press, Freedom of the; Religious Liberty). The Fourth Amendment protects the privacy and security of the home and personal effects and prohibits unreasonable searches and seizures. The Fifth through Eighth amendments protect persons accused of crime; they guarantee, for example, the right to trial by jury, the right to confront hostile witnesses and to have legal counsel, and the privilege of not testifying against oneself. The Fifth Amendment also contains the general guarantee that no one shall be deprived of life, liberty, or property without due process of law (see Due Process of Law). Originally these amendments were binding only on the federal government. However, decisions by the Supreme Court of the United States have established that the Due Process Clause of the 14th Amendment (ratified in 1868) applies many of the guarantees in the Bill of Rights to actions by state and local governments.