So, Flying Dutchman not really vindicated after all?
To paraphrase a line from “The Royal Tenenbaums”, I don’t think he’s an asshole. Just kind of a son of a bitch.
For what it’s worth and to show Flying Dutchman is still wrong, it also appears the ECHR decision goes beyond the US 1st Amendment, as private companies are apparently to be forced by their governments to allow virtually any sort of religious expression.
Well, yes and no. TFD’s posts in this thread are a bit disjointed, but were essentially arguing that the woman had the right (under the group of documents and traditions that form the UK constitution) to be free of religious discrimination, and that BA was discriminating against her. She did have such a right (though conferred by statute rather than the unwritten constitution), but British courts ruled in fairly clear terms that BA didn’t violate it.
On the other hand, the ECHR ruled that she should have had such a right and that BA did violate it. As a neutral arbiter, I would say that TFD wasn’t correct, but that the majority of people who said he was clearly, unquestionably, demonstrably wrong and stupid owe him at least a half-assed apology.
On the third hand (or perhaps first leg), Northern Piper was thoroughly vindicated, since he pointed out that Britain had an obligation under the European Convention on Human Rights to protect her from discrimination and arguably hadn’t - and the ECHR agreed.
The decision goes beyond the First Amendment because the ECHR does. The First Amendment is a limitation on the US federal government (and later, the states). Article 9 of the ECHR is a mandate requiring EU governments to take positive action, not just to refrain from doing things. One of those actions is prohibiting discrimination in the workplace.
The reason I say The Flying Dutchman was vindicated is that the way the European Human Rights Court works, there isn’t a direct appeal from the national courts. So it’s true that the litigation between the complainant and British Air ended in the English Court of Appeal, in favour of British Air.
However, the complaint against the United Kingdom under the European Human Rights Charter is that an organ of the British government, namely the English Court of Appeal, did not adequately protect her by giving too narrow an interpretation to the concept of religious freedom as set out by the European Charter. Thus, in this particular context, it is essentially an appeal from the decision of the English Court of Appeal. The European Court ruled that the English Court of Appeal’s interpretation of the British anti-discrimination legislation and the European Charter was too narrow; that the English Court of Appeal erred; and therefore the United Kingdom had breached her right to religious freedom.
So, the decision does not directly change the outcome of the litigation between the complainant and BA; but as a key part of its decision, the European Court found that British Air did in fact discriminate against her on the basis of her freedom of religion. That is the basic point that The Flying Dutchman made in his OP:
As well, several of the other posters argued, against TFD’s position, that there was no religious discrimination because British Air’s position was that Ms Eweida could wear the cross under her clothing; that her desire to wear it visibly was to express her relgious beliefs, amounted to proselytising, which BA could prohibit without infringing on her right to freedom of religion.
The European Court expressly rejected that argument, and found that the expression of religious beliefs was a key component of freedom of religion. As well, the fact that BA permitted other religious expressions by members of other faiths showed that their insistence on no public display of Ms Eweida’s cross was discriminatory and could not be justified by their uniform policy.
[QUOTE=European Court of Human Rights]
On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image.
[/QUOTE]
(My underlining.)
Rather selective reporting here,
This was one case out of 4 that were bundled together since they covered the same legal ground.
Now in this case it was determined that the ban on this cross was nothing more than the company wishing to express a corporate image, and that this was not justifiable reason to prevent the plaintiff’s rights of freedom of religious expression, since this does not impinge upon BAs obligation to provide services in an impartial manner, nor was there any other reasonable point to this ban, and this was reinforced by the employers change in dress code policy which actually allows staff to wear a discreet crucifix brooch.
In the other 3 cases, what was being argued for - by the plaintiffs was, in effect, a religious carte blanche to discriminate against others solely on the grounds of personal religious belief, and this to take place within organisations with a specific legal duty to comply with equality laws. This judgement reinforces the precedents where employees must cooperate with their employer in complying with the law.In one of those cases, being prevented from wearing a crucifix - which is not a necessary requirement for a Christian - had been risk assessed as having the potential hazard to hopsital patients as a possible infection control risk and this had been carried out by a comptetant person and had been reasonably considered by the employer.
This works both ways, those who were seeking to discriminate because of their personal religious beliefs could very easily be in a position where they become the subject of discrimination from others with differing religious beliefs.
If you read the decision, you will find that this is simply incorrect.
There were four different complainants, each bringing a freedom of religion complaint. The European Court heard all four complaints together and consolidated them into one decision. Only Ms Eweida was successful; the other three complaints were dismissed.
Ms Eweida’s complaint was upheld, because the private employer, BA, could not demonstrate a compelling reason to tell her not to display her cross.
However, the second complainant, who also was wearing a cross on a necklace, lost her complaint, because she worked on a geriatric ward. The employer had a policy of no necklaces of any sort, because of a safety concern that patients might grab on to a necklace. The European Court found that was a strong enough reason to uphold the employer’s policy from a discrimination complaint.
The other two cases were individuals who refused to provide services to same-sex couples, because of the individuals’ religious opposition to homosexuality. The European Court dismissed both of those complaints as well, ruling that their right to freedom of religion did not allow them to refuse to carry out their employment duties.
Apparently they’re allowed the real thing in Heathrow too.
Amazing how a catchy title can grab you at first. So it’s just a case of a religious symbol that is unavoidably visible.
Christians, start tatooing crosses on your foreheads.
Ran out of time yesterday - there was one other point I wanted to make, in support of The Flying Dutchman. He took a great deal of flak for referring to the constitutional rights of Ms Eweida, both because of the “England doesn’t have a constitution” approach, and because her initial complaint was against her employer, and “constitutional rights don’t operate in the private sector”.
The decision of the European Court demonstrates two points very clearly: in Britain, individuals have a right not to be discriminated against in the workplace; and, if the government fails to protect that right, the government itself is liable to the individual.
In this case, Ms Eweida got a declaration that the government of Britain had failed to protect her right to freedom of religion, and thus was in breach of the European Covenant; and, she got an award of damages against the British government, to the tune of 2,000 euros for non-pecuniary damages.
So:
Sounds like a constitutional right to me.
Huh? The thread is only about one of the cases.
Just what did the court hold – did they reject the idea that wearing a cross was proselytising, or did they say an employer couldn’t prevent proselytising? For instance, what if her “expression” of her religion was spouting bible quotes to members of the public?
The opinion is liked in NP’s reanimating post on the previous page. They didn’t really specify to what extent she was entitled to express her religious beliefs, but the crux of their argument was that BA changed its policy after Eweida had refused to comply with it (and by extension, the policy was not so important to BA to necessitate discrimination on its basis):
[QUOTE=ECHR]
Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.
[/QUOTE]
It’s hard to say where the line was drawn by the court because it ignored some of its own precedent, despite citing it in other sections of the opinion:
This is exactly what happened in the Eweida case, but for some reason it was different.
Thankyou Northern Piper. I had all but forgotten that I had brought this issue to the SDMB.
Justice is sweet even if it takes 6 years.
Well, I’ve not delved into all the European case-law, but I think there are three points in response:
In the paragraph quoted, the Court was summarising the argument of the Government of Britain, responding to Ms Eweida. That doesn’t mean that the Court agreed with Britain’s argument, simply that the Court was acknowledging the argument. That’s not uncommon in court decisions, where the Court summarises the losing side’s arguments. (As I, and I’m sure any of the other Doper lawyers, can attest to from personal experience!)
There is a significant difference between the pharmacist cases and Ms Eweida’s case. It looks like the pharmacists were refusing to provide the service to the public that their employer had hired them to do. Refusing to carry out one’s employment duties and denying service to the public is much harder to justify, and the Court in that case may have concluded that on balance it was appropriate to say that the employee was in the wrong workplace and should go elsewhere. That’s not the case here - Ms Eweida was ready, willing and able to provide the service to the public that she had been hired to do, the same as the other British Air flight attendants. Since she was prepared to carry out the service to the public, the Court appears to have accepted that it would not be a fair balance for BA to re-assign her.
It wasn’t just that BA changed its policy; it had already been allowing flight attendants to wear items of jewellry and clothing which indicated their religious affiliation. The Court noted that allowing those other flight attendants to display their religious affiliations had not undermined the overall corporate image that BA wanted to project. In that case, singling out the adherent of one religion for re-assignment, but not others, could not be justified. (Note again that this point is exactly the basic point that The Flying Dutchman in the thread title and his OP.) Since British Air was not re-assigning all flight attendants who wished to display a religious item, this case was not within the scope of the pharmacist cases.
The discussion of proselytizing was from the posters is this thread. The Court focused on freedom to express one’s religious beliefs, which it held was an aspect of freedom of religion.
It didn’t deal with the hypothetical of someone who recited Bible verses to the clientèle, because that issue wasn’t raised by this case. Courts generally restrict themselves to deciding the case before them, not hypotheticals.