The Equality Act 2010 and Individual Employment Rights

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Table of Contents

An Analysis of the Law and Public Policy Issues
Sexual Orientation Discrimination
Discrimination based on Religion or Belief
Civil Partnerships and Marriage
Difficulties Associated with Rights Clashes
Solutions
Critical Comment on the Efficacy and Desirability of the Current Law
References

The Equality Act substitutes and complements earlier laws like the Disability Discrimination Act of 1995 and the Race Relations Act of 1976 (Phillips & Scott 2012). The Act turned into law during 2007 with the aim of ensuring equal treatment of all people at the work place.

The Act includes similar groups that get protection from existing laws on equality. These laws protect people against discrimination based on disability status, age, gender, race, sex, sexual orientation, religion or belief, pregnancy, marriage and civil partnership (Pitt 2011; Selwyn 2012).

An Analysis of the Law and Public Policy Issues

Since this study focuses on the case of Ladele and McFarlane with reference to the principle of conscientious, religious objection to same-sex relationships, we shall only look at elements of the Act that deal with discrimination on the basis of religion and same-sex relationships. These elements include discrimination based on sexual orientation, religion/belief as well as civil partnerships and marriage (Willey 2012).

Sexual Orientation Discrimination

The Equality Act 2010 protects employees against discrimination due to their sexual orientation. According to the Act, discrimination in the form of sexual orientation refers to unequal treatment of lesbians, gay men and heterosexuals (Wright & Conley 2011). The Act prohibits the conduct of discriminating people on the basis of sexual orientation.

This includes treating people unfavorably, discriminating them indirectly, victimizing people, or subjecting people to harassment due to their social orientation. The Act defines indirect discrimination as using a criterion or procedure that limits people of a particular sexual orientation when it is not justifiable.

Discrimination based on Religion or Belief

The Equality Act 2010 protects employees against discrimination based on their religions or beliefs. The Act needs all employers to have policies that relate to recruitment promotion, development, grievance and harassment. Direct discrimination occurs when people get unfair treatment due to their religions and beliefs, or religions and beliefs of their associates (Willey 2012).

The Act further explains different forms of discrimination. Indirect discrimination takes place when an employer has a policy or rule that concerns everybody, but will limit people who have a certain religion or belief.

Harassment occurs when an employer shows undesired actions due to a person’s belief or religion with the aim of infringing a person’s dignity, or creating a harsh atmosphere for that person (Willey 2012). Lastly, victimization refers to the unfair treatment of an employee because of opposing an employer’s practices on religions or beliefs.

Civil Partnerships and Marriage

The Equality Act of 2010 allows gay and lesbian couples to enter a civil partnership, with similar rights to those of a married couple (Willey 2012). According to the Act, direct discrimination takes place when a person gets less favorable treatment than others due to belonging in civil marriage or partnership.

On the other hand, indirect discrimination takes place when an employer has a policy or rule that concerns everybody, but will limit people in a civil marriage or partnership (Honeyball 2012). Nevertheless, indirect discrimination is justifiable in some situations (Honeyball 2012). This decision must show that the employer considered non-discriminatory alternatives before making the final decision.

Some cases that the Equality Act 2010 apply to include McFarlane vs. Relate Avon and Ladele vs. Islington (Sandberg 2011). In McFarlane v Relate Avon case, the claimant got dismissal because his religion and beliefs could not allow him to offer therapy to same-sex couples. According to the Equality Act, McFarlane imposed his own standards on sexual orientation to Relate, which was legally wrong.

On the other hand, McFarlane claimed both indirect and direct discrimination as well as harassment due to his dismissal. Equally, in Ladele v Islington, the Christian registrar became released from work due to her refusal to carry out civil partnership services for same-sex marriages (Hill 2011; Mooney 2009).

The claimant said that she suffered both direct and indirect discrimination due to her religious views. However, the court ruled that she lost her job due to her breach of duty, and not religious inclination towards same-sex marriages. These two cases also show some difficulties associated with clashes of rights.

Difficulties Associated with Rights Clashes

Over the years, scholars have focused on the right clash between religion and homosexuality in the perspective of religious assemblies seeking exclusion from nondiscrimination acts as much as they defend gay entitlements. One question that arises when implementing the Equality Act is: how can a pluralistic community give tolerance of religious differences and equality at the same time?

Another question is: how can the government serve commitments to the Act by guaranteeing expansion and use of civil rights laws in the community, or by guaranteeing protection and consideration for the varied beliefs and practices amid religious societies?

A person can understand the dispute among the two parties’ claims in the case of Ladele and McFarlane by wearing the shoes of gay men and those of Ladele, or McFarlane, alternately.

Gutmann (2003) explains that refusing people the rights to join voluntary associations is unjust. Any way that a state resolves this clash between the autonomy to exclude and liberty to join, the liberty of some citizens to convey their character as they consider fit get restriction due to others freedoms.

The certain win-loss described by Gutmann (2003) is a zero-sum game. Feldblum (Feldblum 2006) claims that due to the basis of homosexuality and religion clash on moral judgments, both sides belong to the zero-sum game since a benefit for one party leads to a loss for the disparate party.

That is to say the values of both sides are too diverse that their last benefits become incompatible. Therefore, accepting religious groups cause that state actors deny civil rights protections. However, the effects of ignoring civil rights groups cannot be underestimated.

While a zero-sum clash on rights involving identity groups must not rest on contrary moral values, the clash between homosexuality and religion arises from the moral character of their differences. For people like Ladele and McFarlane, whose religious beliefs make them think that gay men and same-sex marriages are immoral, any law fortification of gay persons is a loss (Feldblum 2006).

The reverse is right for those who think that gay men and same-sex marriages are morally right. For these people, the failure of regimes to guarantee fairness in dealing with communities that have all sexual orientations through the legislature is a loss (Gutmann 2003)

Given any legislative action or inaction, just one party wins. Hence, most scholars seek to know whether religion is exceptional (Koppelman 2006). They try to find out whether religion has anything unique that would make it get the privilege over rights of gay men, or if equal rights for gay men have a unique feature that should let those rights beat religious freedom.

Solutions

One way of solving problems like religious and homosexuality rights clash is through legislatures (Kramer 2004). Superior authority for law decision-making is achievable either through lesser or weaker judicial review.

Tushnet (1999) suggests that conscientious government officers outside the courts should carry out the work of interpreting the constitution, for some issues. Tushnet (1999) also mentions some of these issues as “the vindication of the declaration’s principles: the principle that all people are equal, the principle that all had inalienable rights” (53).

Conversely, Waldron (2006) claims that judicial review hardly offers a system for a community to concentrate on the problems at hand when people differ on rights. Rather, Waldron (2006) suggests that the most suitable way to resolve rights clash should involve getting people’s opinions, and not judicial review. Besides, Waldron suggests that both rights need equal treatment in the process.

Also, Waldron (2006) supports the idea of ordinary law followed by a court review as effective ways in solving rights clash. Key to this claim is a view that politics acts as the field of conciliation, which can hypothetically solve the matter of needing to choose a champion in the zero-sum competition.

According to Tushnet (1999), lawmakers build statutes like civil rights statutes as they pay attention to their enemies and build compromises that include some concerns of their opponents.

Private dispute resolution is also a way of solving rights clashes. This entails reaching a compromise amid two conflicting rights. McConnell proposes that the most suitable way to avoid a zero-sum game and get a solution to rights clashes is allowing conflicting parties to deal with their rows privately (Anderson & Baker 2010).

The government, using this method, should not inflict a punishment on practices related with or obligated by any perception of homosexuality, and must desist from applying its authority to support, encourage, or progress one place and not another.

Therefore, the state would not penalize sexual acts through accepting gay people. At the same time, the state would not make use of sexual orientation as a ground for discrimination or categorization with no grand rationales that have a basis in moral objections.

Conversely, the state would be slow to project this place of moral objectivity in the private area, although, it would let private influences in the culture find the last answer from the society.

That is to say the problems that legislatures and courts encounter when dealing with rights clash can get a solution through eliminating such matters from their rule.

Also, Minow (1987) argues that a more suitable choice should follow, for those disagreeing to negotiate a commonly tolerable solution since lawsuits may not serve as the most suitable instruments for realizing the normative growth that surface after expressing rights.

Minow (1987) explains “the practice of litigation is too cruel and polarizing to serve the purpose of encouraging certain parties to join in exploring normative commitments through interpretation” (1861).

Therefore, Minow (1987) proposes that parties should conduct mediation before filing lawsuits so that they can understand each other well and promote normative growth with no interference from legal authorities.

Such solutions can make parties evade polarizing effects that they may get from laws, or in courts since they do not consider most aspects. Therefore, parties like Ladele and McFarlane and Islington BC could keep away from the zero-sum game by negotiation.

Another way of solving right clashes is through ballot initiatives. Citizens may suggest amendments to the constitution or law provisions (Skiba-Crafts 2009). Where citizens fruitfully meet the necessary processes, these proposals become subject to a democratic vote, and not legislative ratification (Skiba-Crafts 2009).

This practice has occurred in countries like Florida, Arizona and California in the last two decades, and many anti-gay initiatives have succeeded or faced rejection (Keck 2009). For instance, Arizona citizens accepted the 2008 ballot initiatives to amend the constitutional provisions that sought to ban gay marriage as Arkansas citizens endorsed a ballot initiative banning gay partners from adopting kids.133

Critical Comment on the Efficacy and Desirability of the Current Law

The Equality Act 2010 is effective when it comes to protection of most employees at workplace (Lockton 2011). However, the law becomes hard to enforce when there are rights clashes.

So as, to solve this problem, parties may conduct mediation before filing lawsuits so that they can understand each other well and promote normative growth with no interference from legal authorities. Also, the Act should leave some crucial elements like homo-sexual rights to public opinion and not legislative ratification.

In conclusion, The Equality Act 2010 protects individual employment rights at the work place. Some areas that this law addresses include discrimination based on sexual orientation, religion/belief as well as civil partnerships. However, implementing this law raises several issues on the way rights on varied beliefs and practices can get an offering without interfering with civil rights laws.

This study recommends that conscientious government officers, outside the courts, can carry out the work of interpreting the constitution on issues like rights clashes. Also, the study supports mediation among parties before filing lawsuits and ballot box. This is the only way how cases like those of McFarlane v Relate Avon and Ladele v Islington can get fair judgment.

References

Anderson, R & Baker H 2010, Corporate governance: a synthesis of theory, research, and practice, John Wiley & Sons, London.

Feldblum, C 2006, ‘Moral conflict and liberty: gay rights and religion,” Brooklyn Law Review vol. 72, no. 62, pp. 63–64.

Gutmann, A 2003, Identity in democracy, Cengange, London.

Hill, M 2011, Religion and law in the United Kingdom, Aspen Publishers, South America.

Honeyball, S 2012, Honeyball & Bowers’ textbook on employment law, Oxford University Press, Oxford.

Keck, T 2009, “Beyond backlash: assessing the impact of judicial decisions on LGBT rights,” Law and Society Review vol. 151, no. 161, pp.151-154.

Koppelman, A 2006, Is it fair to give religion special treatment?”Illinois Law Review vol. 571, pp. 572–574.

Kramer, L 2004, “The people themselves,” Popular Constitutionalism and Judicial Review vol.7, no.8, pp. 220-223.

Lockton, D 2011, Employment law 2011-2012, Routledge, Abingdon, Oxon New York.

Minow, M 1987, “Interpreting rights: an essay for Robert cover,” Yale Law Journal vol. 96, pp. 1860-1907.

Mooney, G 2009, Understanding social welfare movements, Policy Press, Bristol Portland.

Phillips, G & Scott, K 2012, Employment Law, College of Law, London.

Pitt, G 2011, Employment law, Sweet & Maxwell Thomson Reuters, London.

Sandberg, R 2011, Law and religion. Cambridge University Press, Cambridge.

Selwyn, N 2012, Selwyn’s law of employment, Oxford University Press, New York.

Skiba-Crafts, A 2009, “Conditions on taking the initiative: the first amendment implications of subject matter restrictions on ballot initiatives,” Michigan Law Review vol. 1305, pp. 1308-1309.

Tushnet, M 1999, “Taking the constitution away from the courts,” Yale Law Journal vol. 14, pp. 52-73.

Waldron, J 2006, “The core of the case against judicial review,” Yale Law Journal vol. 115, pp.1346-1376.

Willey, B 2012, Employment law in context: an introduction for HR professionals, Pearson, London.

Wright, T & Conley, H 2011, Gower handbook of discrimination at work, Gower, London.

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