Friday, June 5, 2015

Chris Morley on Extension of Workplace Protection to LGBT Employees in Ireland After Pro-Equality Vote: A Report on the Debate

At the end of this work week, another well-researched report from Chris Morley — this one about the debate now underway in Ireland regarding workplace protection for LGBT employees, following the recent vote for LGBT equality. As Chris points out, the issue is complicated in Ireland by the fact that there has been a close connection between the Catholic church institutionally and Irish government, as well as between the Irish educational and hospital system. In addition, there are strong constitutional protections for religiously-based employers to practice discrimination in hiring and firing if it is claimed that such discrimination is necessary to maintain the religious identity and mission of church-related institutions. Chris writes:

Ireland to extend workplace protection for LGBT employees

Following the equal marriage referendum, the Irish Government has promised to update employment discrimination laws which currently allow religious-run schools and hospitals to discriminate against those who they perceive as being counter to their 'religious ethos'.

Ireland's Equality Minister announced that there will be an extension in workplace protection for LGBT people and for others, like single parents and divorcees, whose lifestyle may not comply with Catholic expectations.

Although workplace protection for LGBT people exist under the country's Employment Equality Acts, some employers are allowed exemptions. Religious-run schools and heathcare employers like hospitals, can still discriminate against employees, or potential employees, because of their sexuality and relationship status.

The Irish Times reports that Equality Minister Aodhán Ó Ríordáin said that that the government is drafting an amendment to the law to ensure that no employer – including education facilities and medical facilities run by religious groups – is able to discriminate against gay people.

At present, Section 37.1 of Ireland's Employment Equality Acts gives religious employers the power to favour employees or prospective employees if it is 'in order to maintain their religious ethos'.
The government can't remove this gaping loophole entirely, because repealing that section would remove Constitutional rights. Christianity, especially Catholic Christianity, permeates the Irish Constitution and envelopes most public services. 

However, the Equality Minister said the Government intended to "raise the bar of the 'undermining' to be so high as to be irrelevant what somebody's personal life would be." That may be his aspiration, but it is highly likely that organisations like the Iona Institute would soon bring court cases to assert the right of schools and healthcare facilities to discriminate on the basis of their right to manifest their "religious ethos".

Catholicism's grip on education and healthcare

In the Republic of Ireland (pop. 4.6 million) almost all of its 3,300 primary schools are church controlled, over 90% by the Catholic church and about 6% largely by the Anglican Church of Ireland. Its secondary schools and colleges are a little more diverse, with 372 Catholic secondary schools, 25 Church of Ireland and 334 "mixed-denominationa" schools (mixed Catholic & Protestant), 1 Jewish and 1 Quaker. Teachers in primary school must by law have a Certificate in teaching the religion of the controlling body.

Irish hospitals and healthcare services are also largely run by religious (normally Catholic) bodies.

Law's intimidating, "chilling effect"

Gay teachers and healthcare staff often fear that coming out will hinder their careers. Civil Unions are already avoided by many and once LGBT civil marriages begin in the autumn, these will also often be avoided by education and healthcare workers.

As the Irish Times notes, "Recently the Irish National Teachers' Organisation had an event in Áras an Uachtaráin, (the 'Residence of the President'), in Phoenix Park, Dublin, where they met President Michael D Higgins." A number of people wouldn't allow themselves to appear in the photograph with the President because they were worried about being identified as LGBT teachers by employers. They feared it would impact on their employment prospects or felt it might go against them in their workplace. "So while we rightly celebrate marriage equality, there is still some uncertainty and a certain chill factor with gay and lesbian people, especially in schools," said the Equality Minister.

'Sexuality' and 'Relationship Status' protections, but with religious get-out clauses

In Irish employment discrimination law there are some specific protections for people on the basis of their sexuality, and on the basis of your marital status. But this is limited. For example you can be sacked because of your sexuality within your first year in any job.

But most significantly, under section 37(1) of the Act 'religious, educational or medical institutions under the direction or control of a religious body, or whose objectives include the provision of services in an environment which promotes certain religious values' have two get-out clauses for religious employers. Then the discrimination law works in reverse.

The first legal opt-out for religious employers is that these 'religious' educational and medical institutions have the right to maintain their "religious ethos", within limits. They can treat some people more favourably in order 'to maintain their religious ethos' 'where it is reasonable to do so'. The problem for LGBT workers (and single parents and divorcees for example) is that the law is so imprecise, so no-one really knows where they stand, or what their rights are. All the power lies with the school or healthcare body who can make it up as they go along.

- What exactly does ' maintain their religious ethos' mean?
- It is also left to the employer to decide 'where it is reasonable to do so'.

The second religious opt-out is that employers can take "action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution", which is hopelessly vague and elastic.

- The word 'undermining' is not defined, so no-one can really know where they stand.
- "Action which is reasonably necessary" is also very wooly.

Things could all change without warning with the appointment of a new head teacher, or with different priest on the governing body, for example.

In February, Gay Star News reported that an Irish teacher felt forced to blur out her face in a lip synch video with her partner as she was worried that she would be fired or disciplined if recognized.

"Effectively you have a situation where an awful lot of teachers in primary and secondary schools would have voted Yes [in the marriage referendum] … ," said Equality Minister Ó'Ríordáin in an Irish Times podcast, "would have gone out and celebrated over the weekend, possibly went back into their staff rooms on Monday morning and didn't tell anybody what they were up to, because they felt it would impact on their promotion prospects in the school." 

He pointed out that the change would not only benefit LGBT people, but also teachers who are divorced or remarried, who may also still face discrimination in religious-run schools.

Catholic opposition to change

His views were disputed by a teacher training lecturer in theology, Dr John Murray, chair of the Iona Institute's Board of Directors. The Iona Institute is a traditionalist Irish Catholic organization that seeks to 'promote the place of marriage and religion in society'.

He claimed, "I’m involved in education for the last 30 years and I'm not aware that there's a major problem about this, in terms of people being sacked or people losing their jobs or people not being able to do their jobs. It simply isn't true," said Murray during the same podcast. He also said he "remains to be convinced" that a planned change to employment equality law will protect the right of Catholic schools to defend their 'religious ethos'.

John Murray said he was "concerned" by the Minister of State Aodhán Ó Ríordáin's announcement that he was working hard to ensure the Employment Equality Act would be amended by September, when the new school term starts.

"Schools need to be able to protect and support their ethos for the sake of the parents who send their children to the school and who are relying on the school to educate their children in harmony with their convictions and values. The law needs to support this," Dr Murray said.

He claimed, "Schools don’t discriminate on the basis of sexuality anyway. Nobody should be excluded from a school on the basis of sexual orientation."

Dr Murray, who is also a lecturer at the Mater Dei Institute, was responding to reports that new legislation would offer protections to staff of religious-run schools who are members of the LGBT community, while allowing schools to maintain their religious ethos. Dr Murray remarked that the planned Bill sounded "very vague".

"I can't see any way of doing both but I would certainly look at any alternatives that are presented. If there was a robust protection for school ethos then I would accept that but it would have to be reliable," he said, adding that he "remains to be convinced that any alternative will do the job of protecting school ethos and parents' rights".

"The constitution supports schools having a particular ethos. Therefore, parents have a right to an education for their children that is in line with their values and beliefs as far as possible," he said

The previous Irish administration had promised to provide increased protection against such discrimination but failed to deliver any law change. We will have to wait for the text of the proposed ammendment to appear, but it seems to be almost impossible to square this circle by 'raising the bar so high' as to effectively protect LGBT teachers and healthcare staff, yet at the same time maintain the Constitutional and legal right of schools and heathcare bodies to 'maintain their religious ethos'.


Teach Don't Preach Irish campaign for secular education 

The Journal commentary: 'Secular health policy must replace Catholic health policy' 

Gay and Lesbian Equality Network (GLEN)'s evidence to the Equality Authority on the operation of S.37.1 of the Employment Acts (pdf file)

Guide to the Employment Equality Acts – Irish Human Rights and Equality Commission, page 17 (pdf file)

Irish Constitution 1937; Article 42 deals with education and Article 44 sets out religious rights

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