European court: Religious freedom a right, but not an absolute one
Defining limits of religious expression in the workplace a thorny issue
Alastair Grant, ASSOCIATED PRESS
LONDON — Religious freedom is a right but not an absolute one, Europe's top court said Tuesday, ruling that British Airways discriminated against a devoutly Christian employee by making her remove her crucifix, but backing a U.K. charity that fired a marriage counselor who refused to give sex therapy to gay couples.
In judgments welcomed by civil liberties groups but condemned by religious advocates, the European Court of Human Rights said freedom of religion is "an essential part of the identity of believers and one of the foundations of pluralistic, democratic societies."
"However, where an individual's religious observance impinges on the rights of others, some restrictions can be made," the court said.
The court's judges, by a five-two margin, backed a claim by BA check-in clerk Nadia Eweida, who sparked a national debate in Britain over religion when she was sent home in November 2006 for refusing to remove a small silver crucifix to comply with rules banning employees from wearing visible religious symbols.
BA eventually changed its policy and Eweida returned to work, but she pursued a claim of religious discrimination, seeking damages and compensation for lost wages.
British courts backed BA, but Eweida went to the European Court of Human Rights. The Strasbourg, France-based court ruled Tuesday that the airline's policy "amounted to an interference with her right to manifest her religion."
It said while BA had the right to "project a certain corporate image ... Ms. Eweida's cross was discreet and cannot have detracted from her professional appearance."
Eweida, 60, said when she heard the verdict "I was jumping for joy and saying 'Thank you, Jesus.'"
"It's a vindication that Christians have a right to express their faith on par with other colleagues at work visibly and not be ashamed of their faith," she said.
British Airways said it had changed its policy on religious symbols in 2007 and was not a party to Eweida's legal action, which was pursued against the British government.
Defining the limits of religious expression in the workplace has proved a thorny issue in many countries. In the United States where the law states that employers must try to "accommodate" workers' religious needs, Christians, Sikhs, Muslims and others have lodged lawsuits over restrictions on their appearance and behavior.
Attempts to clarify matters with a federal Workplace Religious Freedom Act foundered several years ago, but last year California passed a workplace law that, among other provisions, bars employers from restricting workers from wearing religious symbols during back-office jobs.
The law follows discrimination cases including one in which a Sikh man won almost $300,000 in damages after he was barred from becoming a prison guard because he refused to shave the beard required by his religion so he could be fitted for a gas mask.
The British government, which has often bristled at the European court's rulings, welcomed the judgment in Eweida's case. Prime Minister David Cameron tweeted that he was "delighted that principle of wearing religious symbols at work has been upheld."
But the court ruled against Shirley Chaplin, a nurse who was told to remove a crucifix necklace at work. The judges said Chaplin's employer banned necklaces for health and safety grounds, and so asking her to remove the symbol was not excessive.
The U.K. judges also struck down claims by Lillian Ladele, a local authority registrar who said her Christian faith prevented her from overseeing same-sex civil partnerships, and marriage counselor Gary McFarlane, who refused to offer sex therapy to gay couples.
In both cases, the court said employers had been entitled to strike a balance between claimants' rights to manifest their religious beliefs and the rights of others not to suffer discrimination.
Michael Powner, an employment law expert at Charles Russell LLP, said the court's judgment was "a sensible one, highlighting the balancing act that has to take place when different convention rights compete in different factual scenarios."
"One right does not automatically trump others," he said.
Shami Chakrabarti, director of human rights group Liberty, said the verdicts were "an excellent result for equal treatment, religious freedom and common sense."
But religious groups said the rulings sent the message that sexual orientation trumps religion when it comes to rights.
Dave Landrum, director of advocacy for the Evangelical Alliance, said the court "has shown a hierarchy of rights now exists in U.K. law."
"If we want to create a society that is diverse and can live with its deepest differences there needs to be a fuller protection for religious beliefs, convictions and actions," he said.
The court's rulings are binding on the 47 member states of the Council of Europe, the continent's human rights watchdog. The losing claimants can try to appeal to the court's Grand Chamber, a higher panel of five judges.
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