Sunday, June 5, 2011

Discrimination, pt2/3 - Gays

As well as employment, discrimination legislation applies to the provision of goods and services.

Back in March this year, Michael Black and John Morgan had booked a room to stay the night in a Bed & Breakfast in Berkshire. Unfortunately, when they arrived, they discovered that because of their religious beliefs, the owners only allowed married couples to share double rooms. Mr Black and Mr Morgan's civil partnership was not good enough, and they were turned away. They took the B&B owners to court for discrimination on the grounds of their sexual orientation, and won their case.

Here we have a conflict between two different rights: the right to practice religious beliefs and the right not to be discriminated against on the grounds of sexuality. In this case, the law imposes duties on the provider of the service, and not on the users. It may seem hard on the B&B owners, who wanted to do what they thought was morally right, but imagine if they had been refusing rooms to other people - no (guide) dogs, no blacks, no irish. Would they be sympathetic then? In law, at least, gay people have the same protection from discrimination as races, religions, etc.. Would the B&B owners be more sympathetic if they were Muslims, or Jewish?

What makes this case a little more complex is this: the B&B owners were not directly saying "no gays." They were saying "no unmarried couples can share a double room." However since same-sex couples cannot marry, this has a discriminatory effect. What the judge ruled was that marriage and civil-partnership were equivalent. Meaning that it may be legal to refuse to take people who were not married or in a civil partnership, but not to refuse people who are in a civil partnership, but to accept people who are married. And also not legal to refuse to take people who are married, but to accept people who are in a civil partnership.

Incidentally, you might wonder "why is it always christians in these cases?" There may be some more interesting reasons behind this, but a simple and obvious one is: because over 70% of the UK population call themselves christians, while only 5.4% are believe in other religions.

Friday, June 3, 2011

Quick Film Reviews #3

Grave of the Fireflies
I spent the first half hour or so of this Studio Ghibli film right on the brink of crying, but I think that may have been more me than the film. The film's about a boy and his baby sister's during the final stages of World War 2 in Japan, amidst firebombing and rationing. I'm going to give away a bit of the plot, but I don't think it's too serious. Ultimately the film was nice enough, but didn't do all that much for me. I also can't shake the interpretation that for all the niceness of trying to find their own way, and not leave her alone, the main character basically kills his sister. It's no Panda Go Panda.

Chungking Express
Chungking Express is not quite the same meticulous, precision crafted film you might know Wong Kar Wei for, but it has the same laden, dreamy style and love of telling stories. The cinematography might not be as sumptuous, but it is still carefully composed and laden with colour. The film has some odd features as well. In particular, it presents two stories, one of which is significantly shorter. The transition between the two takes a little getting used to before you realise they do have entirely different characters. One feature I particularly liked was that the main characters give some narration, thoughts and wisdom, but I never felt these were meant to be taken too seriously. Especially when these pieces of philosophy are issued after eating several dozen tins of pineapple chunks. Stylistically the film's a wonderful evocation of a 24-hour, neon-tinted, multi-lingual city, a setting that fits the its celebration of throwaway chances and romantic possibilities.

Probably Terry Gilliam's masterpiece, Brazil always gets compared to 1984, and I'm not going to break the habit. In fact, Brazil is a more plausible vision of the future. Instead of a faceless, ruthlessly efficient system, Brazil's totalitarianism is a somewhat careless bureaucracy. Its staff are not faceless automatons but real people, who might be nice or nasty, but who are bound by their roles and the rules that go with them. You won't get shot for challenging the system, you'll just get bounced around between agencies filling in forms until you lose the will. Ultimately I suppose it is about how people fight and escape from this system with imagination and fantasy. (Although what it does share with 1984 is the use of a woman as a liberating fantasy.) Along with that you have all the visual imagination and wit you'd expect from a Terry Gilliam film, from the architecture that brings to mind early sci-fi, futurism (and its associate fascism), to the immensely long peaks on the engineers' caps. Plus it features Michael Palin as a chummy torturer and Robert de Niro as a renegade heating engineer, who zip-lines out of every scene.

Discrimination, pt1/3 - Christians

Thought experiment: how would you feel if the government decided your beliefs weren't a proper philosophy? Or if a judge told you something wasn't part of your religion?

Generally I find law fairly boring, but there are exceptions. One exception is discrimination based on belief. This area throws up a whole load of interesting cases and interesting issues, as both religious and non-religious people try to assert their rights. In particular, it brings out conflicts between different rights, and the question of what counts as a legally relevant religion or belief. It's also an area where it seems to me that the courts have made sensible decisions, but where eventually they are going to be forced into farcical or impossible positions.

This is mainly about employment law, because that's what I'm most familiar with. Under the Equality Act, employers are not allowed to discriminate against employees (or those applying for jobs) based on a range of “protected characteristics.” These characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

This doesn't mean you have to hire people who are unable or unwilling to do the job. Say you're running a greasy-spoon serving mainly bacon and pork sausages to overweight lorry drivers and mouthy builders. You're hiring a new chef. You are absolutely not allowed to reject an applicant because they're Jewish. However you are allowed to reject someone because they refuse to handle pork. The basic principle is – you can do something if you have a good business reason to justify it.

On to some actual cases.

One of the first to get widespread attention was the case of a British Airways stewardess, Nadia Eweida, who wanted to openly wear a crucifix. This breached a BA policy preventing staff from wearing jewellery unless if could be hidden from view.

Ms Eweida was suspended in 2006 (not solely because of the crucifix). She took BA to an employment tribunal claiming £20,000 in back pay and compensation on the grounds that the company had unlawfully discriminated against Christians. Two facts looked bad for BA. The first was that they allowed Sikhs to wear traditional iron bangles and Muslims to wear headscarves. The second was that BA changed their policy in 2007, and Ms Eweida returned to work. If it had to defend the policy as necessary, it would have trouble.

Despite this, the Employment Tribunal rejected Ms Eweida's claim, as did the Employment Appeals Tribunal and finally the Court of Appeal. The Court backed up the ET's view that “it was not a requirement of the Christian faith that a cross be worn and Mrs Eweida’s decision to wear it was a personal one.” There was no discrimination against “Christians” as a group.

A similar case came up this Easter. A council employee wanted to display a palm cross in his van, going against the council's ban on the display of personal effects. In this case, the council revised its policy and the dispute was resolved. That was probably a wise move. To start with, it avoids going to court over a minor issue. Moreover, the fact that something is legal does not make it a good idea – employers should exercise their discretion when faced by employees with firmly held values and beliefs.

The important point here is that the court has made a decision on what “Christianity” requires and what is the individual's interpretation or belief. It leaves open the question of how many people constitute a “group” or a “religion” - how large does my sect have to be before it is protected by the law? That said, perhaps I am applying a basic fallacy of jurisprudence – that because it is hard to draw a clear line, a line cannot be drawn. In fact, it is a key role of jurisprudence to draw those lines, like the line between being a child and being an adult, even where there is clearly a continuum.