The European directive on job discrimination has been amended to lessen the risk of discrimination by religious groups against gay people. A new clause has also been added calling on all governments of EU countries to dismantle all legislation that discriminates against gay people.
The committee considering the latest draft of the directive have responded to lobbying from religious groups and from gay people to incorporate added protections. In the first draft of the directive, Article 4 gave religious groups the right to practise what the Government called “justifiable discrimination” in its employment policies. This would have given religious employers the right to refuse jobs to gay people, non-believers and others whose lifestyle they didn’t approve of. This has now been amended so that religious groups can only reserve jobs in their organisations for people of their own religion. They will not be allowed to refuse a job to a gay person of that religion. The kinds of jobs being covered by this exemption have also been reduced, so that people like janitors, receptionists, cleaners and so on cannot be required to be of the relevant faith. At the same time the exemption has been extended to include all religious organisations, not only schools and churches, but those in the welfare field – hospitals, nurseries and welfare organisations. A clause has been added saying that member states of the EU “respect the status of churches and religious associations”.
There remains the problem of defining the difference between “sexual orientation” and “a practising homosexual”. Religious groups could still argue that any gay person in a relationship, or who admits to having a sex life, could still be refused a job, even if he or she was a member of the relevant religion or denomination. This is because they have asserted that having a homosexual orientation is not against their religion, but being homosexually active is.
Terry Sanderson of GALHA said: “This is all highly unsatisfactory. Although the committee have tried to please both religious objectors and gay lobbyists, they have simply succeeded in making the whole thing worse. It seems that the demands of the religious for privileges and the calls from gay people for equality are absolutely incompatible. Either religion is not given the right to discriminate against homosexuals or it is – there is no middle ground. There is no such thing as partial equality, and the concept of “justifiable discrimination” being contained within an anti-discrimination law is ludicrous. The Commissioners are going to have to choose. Either gay people are protected from discrimination or the whole directive will be devalued and potentially in conflict with the European Convention on Human Rights. I don’t think this is what was intended by its originators.
“A summit of EU leaders will meet to finalise and ratify the directive in October. All 15 member states must agree to be bound by the directive or it will fall. Although Britain has many misgivings about the directive, and has stated that it doesn’t want to give statutory protection against employment discrimination to gay people, Mr Blair may find it difficult to be seen arguing against equality in a European setting.”
Notes:
Amendment 18 reads: “The member states should repeal all penal code provisions discriminating against homosexuals.”
Amendment 37 (Article 4.2) reads: “Member states shall provide that, in the case of public or private organisations which pursue directly and essentially the aim of ideological guidance in the education, health care and related work they undertake, and for particular occupational activities within those organisations which are directly and essentially related to that aim, a difference of treatment based specifically upon the religion or belief of an individual shall not constitute discrimination where, by reason of the nature of these activities, the religion or beliefs in question constitute a genuine occupational qualification. This will not justify discrimination on any other grounds.”
The justification for this amendment reads: “The intention is to widen the text to cover the wider ‘social’ activities of religious organisations while restricting it to personnel directly involved in ideological guidance (i.e. not receptionists or janitors). It also makes it clear that the dispensation will apply only to religious beliefs and not, for example, to sexual orientation.”
The explanatory notes say: “Representatives of religious communities point out that in some countries the planned directive is likely to have implications for the constitutional position of such communities. In particular, the exception defined in Article 4(2) does not extend to institutions and organisations that provide social services and health care. If the staff of the hospitals and nurseries they run can no longer be selected on the basis of religious criteria since this would constitute discrimination against the persons concerned, there is a danger that Churches or religious communities will run fewer and fewer facilities whose existence is in the public interest. Such facilities should therefore be covered by Article 4(2).”