Is all harassment equal? the case of religious harassment

Cambridge Law Journal

Volumn 65, Issue 3, 2006, Pages 579-605

  Vickers, Lucy ^a  

^a OXFORD BROOKES UNIVERSITY   (United Kingdom)

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EID: 85011476718     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197306007239     Document Type: Article

References (67)

1. The Employment Equality (Religion or Belief) Regulations 2003, S.I. No. 1660.
2. The Employment Equality (Sexual Orientation) Regulations 2003, S.I. No. 1661.
3. The Employment Equality (Age) Regulations 2006 S.I. 1031 entered into force in October 2006.
4. In Article 2(3) of the EU directive, the unwanted conduct must have the ‘‘purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading or offensive environment’’; ‘‘and’’ is replaced with ‘‘or’’ in the UK version. In other respects the definition is narrower than that of the Directive in that harassment must be ‘‘on grounds of’’ religion rather than merely ‘‘related to’’ religion. On the distinction, see L. Clarke, ‘‘Harassment, Sexual Harassment, and the Employment Equality (Sex Discrimination) Regulations 2005’’ (2006) 35 I. L. J. 161.
5. On the dangers of what he terms the ‘‘false consistency’’ of attempting to treat all grounds of discrimination alike, see C. McCrudden, ‘‘Thinking about the Discrimination Directives’’ (2005) 1 European Anti-Discrimination Law Review 17.
6. Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age or Disability 58 Fed. Reg. 51, 266 (1993).
7. T.M. Dworkin and E.R. Peirce, ‘‘Is Religious Harassment ‘More Equal’?’’ (1995) 26 Seton Hall Law Review 44.
8. On the benefits of basing protection against harassment on the concept of dignity rather than on the concept of discrimination or less favourable treatment, see R. Ehrenreich, ‘‘Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment’’ (1999) 88 Geo. L. J. 1, and Clarke, note 6 above.
9. It is unclear as yet what the full practical effect of the shift to viewing harassment as an attack on workers’ dignity will be, but it should help overcome some of the difficulties in using a discrimination model for harassment. These were highlighted in the case of Pearce v. Governing Body of Mayfield School, [2003] UKHL 34, where it was confirmed that conduct of a sexual or racial nature is not discriminatory unless it was directed at the victim because of her sex or race. If an employer would have treated a man equally badly, the harassment of the woman would not amount to unlawful sex discrimination. Under a definition based on dignity, bad treatment can be harassing without the need to find a direct comparator, if it infringes the victim's dignity. However, the harassment will still need to be ‘‘on grounds of’’ sex, race, etc. which means that the need for comparisons is not removed entirely.
10. An example of a case that might be decided differently is Stewart v. Cleveland Guest (Engineering) Ltd. [1996] I.C.R. 535. where the display of nude pin ups was found not to amount to sexual harassment because it was not discriminatory: men may also have been offended. Under the new definition, if the pin ups offend the dignity of women, it is arguable that there will be harassment, without the need to asses whether or not they have the same effect on men.
11. Driskel v. Pennisula Business Services [2000] I.R.L.R. 151.
12. Driskel v. Pennisula Business Services [2000] I.R.L.R. 151, 155.
13. Bracebridge Engineering v. Darby [1990] I.R.L.R. 3 (sexual assault)
14. Insitu Cleaning v. Heads [1995] I.R.L.R. 4 (offensive name calling).
15. For further discussion see M. Connolly, ‘‘Race, Gender and Mens Rea’’ [2001] J. Civ. Lib. 150; and
16. J. Ross, ‘‘Reason, Ground, Intention, Motive and Purpose’’ (1990) 53 M.L.R. 391. See also Clarke, note 7 abovex, who points out that the new definitions do not fully transpose the Framework Directive which uses the term ‘‘related to’’ rather than ‘‘on grounds of’’ race/ sexual orientation, etc. The term ‘‘related to’’ is broader in scope.
17. See C. Evans, Freedom of Religion under the European Convention on Human Rights (Oxford 2001); and
18. P.W. Edge, ‘‘The European Court of Human Rights and Religious Rights’’ (1998) 47 I.C.L.Q. 680.
19. (1995) 19 E.H.R.R. 34.
20. E.H.R.R. at para. [47]. For more detail on assessing how much harm is involved in causing offence, see J. Feinberg, Offence to Others (Oxford 1985). Feinberg considers a number of factors, including the seriousness of the offence balanced against the reasonableness of the offending conduct.
21. See, for example, the facts of the US case, Chalmers v. Tulon Co. of Richmond 101 F. 3d 1012 (4th Cir. 1996). Chalmers sent letters to colleagues saying that they had done immoral things and needed to repent.
22. See, for example, the US case, Brown Transport Corp. v. Commonwealth 133 Pa Comm 545, A 2d 555 (1990). Here a Jewish employee objected to bible verses appearing on pay slips, and on religious articles appearing in a company news letter. The employee complained, and was later sacked. He claimed he was subject to religious harassment, by being subjected to the religious speech of the employer. He was successful.
23. ‘‘Freedom of Speech and Workplace Harassment’’ (1992) 39 U.C.L.A. L. Rev. 1791.
24. See also K.R. Browne, ‘‘Title VII as Censorship: Hostile Environment Harassment and the First Amendment’’ (1991) 52 Ohio St. L.J. 481.
25. S. Sangree, ‘‘Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight’’ (1995) 47 Rutgers L.R. 461
26. J.M. Balkin, ‘‘Free Speech and Hostile Environments’’ (1999) 99 Columbia L. R. 2295
27. D. Epstein, ‘‘Can a ‘Dumb Ass Woman’ Achieve Equality in the Workplace? Running the Gauntlet of Hostile Work Environment Harassing Speech’’ (1996) 84 Georgetown L.J. 399.
28. See Lingens v. Austria (1986) 8 E.H.R.R. 407, where the criminal sanction imposed effectively prohibited any contribution to public debate, and was found to be in violation of the Convention.
29. Contrast with Vereniging Rechtswinkels Utrecht v. Netherlands (1986) 46 D. & R. 200. Here there was no breach of the Convention when applicant's permission to run an advice centre in a prison was withdrawn after he had reported an incident to the press, in breach of an agreement. The Commission pointed out that the applicant was not prevented from expressing his views altogether, but merely prevented from doing so whilst continuing to run the advice centre.
30. Lingens v. Austria, note 28 above, Castells v. Spain (1992) 13 E.H.R.R. 445.
31. See also A. Meiklejohn, Free Speech and its Relation to Self-Government (New York 1972).
32. J. Milton, ‘‘Areopagitica’’ (1644) in Areopagitica and Other Prose Works (London 1927)
33. J.S. Mill, ‘‘On Liberty’’ in S. Collini (ed.), On Liberty and Other Writings (Cambridge 1989).
34. See L. Vickers, Freedom of Speech and Employment (Oxford 2002), ch. 2, on the range of interests that arise in relation to freedom of speech at work.
35. See Dworkin and Peirce, note 10 above, at p. 81 and S.D. Jamar, ‘‘Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom’’ (1996) 40 New York Law Sch. L.R. 719, 727.
36. See G. Moens, ‘‘The Action-Belief Dichotomy and Freedom of Religion’’ (1989) 12 Sydney L. R. 195.
37. See D.N. Kaminer, ‘‘When Religious Expression Creates a Hostile Working Environment: The Challenge of Balancing Competing Fundamental Rights’’ (2000–2001) 4 New York University Journal of Legislation and Public Policy 81, 112.
38. C. Estlund, ‘‘Freedom of Speech in the Workplace and the Problem of Discriminatory Harassment’’ (1997) 75 Tex. L.R. 687
39. and C. Estlund, Working Together: How Workplace Bonds Strengthen a Diverse Democracy (Oxford 2003).
40. V. Schultz, Life's Work [2000] 100 Colum. L. Rev. 1881, 1885.
41. Debate surrounds the question of whether religion is a chosen characteristic. It is not an immutable characteristic like sex or race, but nor is it purely a matter of free choice. To the extent that it involves a matter of free choice, the choice is so fundamental to the individual that it cannot be changed without hugely impinging on personal identity and dignity. The issue is discussed in R. Wintemute, Sexual Orientation and Human Rights: the US Constitution the European Convention, and the Canadian Charter (Oxford 1995); and
42. P.W. Edge, ‘‘Religious Rights and Choice under the ECHR’’, [2003] 3 Web J.C.L.I.
43. See Jamar, note 34 above, at p. 728; and T.C. Berg, ‘‘Religious Speech in the Workplace: Harassment or Protected Speech?’’ (1999) 22 Harvard Journal of Law & Public Policy 959, 990.
44. Bracebridge Engineering v. Darby [1990] I.R.L.R. 3.
45. Snowball v. Gardner Merchant Ltd. [1987] I.R.L.R. 397.
46. Driskel v. Pennisula Busines Services [2000] I.R.L.R. 151.
47. Stewart v. Cleveland Guest Engineering Ltd. [1994] I.R.L.R. 440.
48. See Insitu Cleaning v. Heads [1995] I.R.L.R. 4 for an example of sexual harassment based on a single incident of offensive name calling.
49. Wilson v. US West Communications 58 F 3d 1337 (1995). She was dismissed, and the dismissal was held to be lawful.
50. [1995] I.R.L.R. 4.
51. [1995] I.R.L.R. 4, 9.
52. [2002] EWCA Civ 1926.
53. See S. Fredman, ‘‘The Future of Equality In Britain’’, EOC, Working Paper Series No. 5 (Equal Opportunities Commission, London 2002) 11.
54. See T. Macklem, ‘‘Faith as a Secular Value’’ (2000) 45 McGill Law Journal 1.
55. This reason for protecting freedom of religion was relied on in Kokkinakis v. Greece (1994) 17 E.H.R.R. 397.
56. Discussed in P.W. Edge ‘‘The Missionary's Position after Kokkinakis v. Greece’’ [1995] 2 Web J.C.L.I. 62 See Jamar, note 34 above, for more detail on the principles that should govern the legal response to religious discrimination. He identifies accommodation, equality, neutrality, tolerance and inclusion.
57. See Universal Declaration of Human Rights, Canadian Charter of Rights and Freedoms, South African Constitution and European Union Charter of Fundamental Human Rights.
58. See, for example, D. Kretzmer and E. Klein (eds.), The Concept of Human Dignity in Human Rights Discourse (The Hague 2002).
59. H. Collins, ‘‘Discrimination, Equality and Social Inclusion’’ (2003) 66 M.L.R. 16
60. Fredman, note 52 above; L. Barmes with S. Ashtiany, ‘‘The Diversity Approach to Achieving Equality: Potential and Pitfalls’’ (2003) 32 I.L.J. 274
61. C. Barnard and B. Hepple, ‘‘Substantive Equality’’ [2000] C.L.J. 562.
62. J. Small and E. Grant, ‘‘Dignity, Discrimination and Context: New Directions in South African and Canadian Human Rights Law’’ (2005) 1 Human Rights Review 25.
63. The only exception to the Employment Equality (Sexual Orientation) Regulations 2003 applies to employment for the purposes of an organised religion, a phrase that is interpreted very narrowly and does not cover most religious employers: Amicus case [2004] EWHC 860 (Admin).
64. [1996] I.R.L.R. 596.
65. Pearce v. Governing Body of Mayfield School [2003] UKHL 34.
66. On the difference between manifestation of religion, and religiously motivated behaviour see C. Evans, Freedom of Religion under the European Convention on Human Rights (Oxford 2001).
67. Guidelines on Harassment Based on Race, Color, Religion, Gender, National Origin, Age or Disability, see note 8 above.