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UK cinemas refuse to play Lord's Prayer ad in front of Star Wars
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Sure. And if the cinema didn’t take ads at all, there’d be no case for saying that they must take religious ads. But, given that they do take ads, then the law requires them not to discriminate against customers on the grounds of religion. And a refusal to take religious ads certainly looks like discrimination on the grounds of religion, no?Well, you have to... The law protects one's right to hold a religious belief, bit it does not necessarily protect one's right to manifest that belief in every way one might want to, even where one believes a particular manifestation is a requirement.
Possibly the law should, as I have already acknowledged. My point is that this law doesn’t seem to do that. It seems to me that, if advertising agencies are to be allowed to refuse to take religious ads, there needs to be some qualification or exception to the general rule that affording less favourable treatment on the grounds of religion is forbidden. And I don’t see that qualification or exception in the Act. Do you?So whilst you might be right that it is difficult or impossible to disentangle who a religious person is from what that religious person does, on occasion the law has to.
No, it’s not. If the agency had a policy of accepting Christian ads but not Muslim ads, or "support traditional marriage" ads but not "support SSM" ads, you wouldn't assert that to defend against a discrimination claim “it is sufficient to say the [rejected] ad did not comply with DCM's policies regarding what it would or would not accept”. The significant issue, surely, is not whether an ad complies with DCM’s policy, but whether DCM’s policy is consistent with the requirements of the equality legislation?Perhaps if you were claiming discrimination on the part of the ad itself. With respect to the person trying to air the ad it is sufficient to say the ad did not comply with DCM's policies regarding what it would or would not accept.
“The protected characteristic is sexual orientation, not sexual activity.” This won’t fly, MrPudding. Broadly speaking, gay sex is had by gay people because they're gay. Religious ads are placed by religious people because they're religious. In both cases there could be exceptions, but the correlation is strong enough to make a nonsense of any defence that seeks to distinguish between those gays/Christians ("I love them all!") and that gay sex/Christian witness ("Ugh!")But this just doesn't work, that would mean DCM could not refuse any ad for any reason even vaguely related to a protected characteristic. The protected characteristic is a characteristic of the person trying to do the act, not the act.
I concede that there can be a blurry line in this area. In Asher’s Bakery, the court proceeded on the basis that refusing to accept an order for a “support SSM” cake was discrimination on the grounds of sexual orientation, even though a straight person can obviously support, and campaign for, SSM, and can seek to order a cake for that purpose. I think that finding is a bit iffy, as I think I’ve already said. But if that one is even arguable, this one is a slam-dunk. There may be a fuzzy line over where, exactly, an act motivated by a protected characteristic can be treated distinctly from the characteristic for the purposes of the equality legislation, but this particular example is nowhere near that line. The placing of this ad can’t honestly be described as “vaguely related” to the religious characteristic of the people placing the ad. Professing religious beliefs is to religion what having sex is to sexuality!
For a comparator, there does need to be a change in treatment. Remember, what the act forbids is “less favourable treatment”. If you compare yourself with somebody who actually got the same treatment as you, there is no “less favourable treatment”, and the question of whether the less favourable treatment was afforded on one of the prohibited grounds is meaningless. The comparator has to be somebody afforded different treatment (in this instance, someone whose ad was or would be accepted); only then can we explore whether the difference in treatment was afforded on prohibited grounds.No. there doesn't need to be a change in treatment. There needs to be a change in protected characteristic. Remember it is the person that is protected, not necessarily (though sometimes it will be) the thing they are trying to do.
On your argument, it seems that an employer accused of discrimination for refusing to hire a woman could point to a man who he had also refused to hire and say “Look! No gender discrimination!” But that won’t wash; the comparators are the people who are or would be hired, not the other unsuccessful candidates.
No, no. A comparator who’s “not doing something” is no use. If it were, then some arbitrary individual who is neither seeking to place an ad with DCM nor employed in your hypothetical - myself, for example, or yourself - would be a valid comparator in both instances, which is nonsense. The comparator has to be someone who seeks (and gets) the treatment that the complainant seeks (and is refused). Then, and only then, can we explore whether the difference in treatment is afforded on a prohibited ground.Well yeah, that was exactly the point. Your comparator for the ad is similar to my comparator for the muslim employee. Your comparator is not doing something DCM would object to. My comparator in the muslim employee case is also not doing something the employer would object to.
Yes, I agree with all that. (Warm feelings again!)If we run with the analogy a little, what is the problem? The problem is taking time off work. I don't think the reason matters, the issue is taking time off work. So the valid comparator to the muslim employee is an employee that does not share the muslim employees protected characteristic, so isn't a muslim. And what they are trying to do needs to be broadly similar to what the muslim employee was trying to do, and that is simply take multiple periods of time off each day. What that time off is for is not actually relevant, the protected characteristic is a characteristic of the person, not the act.
But I’m not starting down that road at all. I haven’t suggested, and don’t suggest, that the Muslim employee must get time off because what he is doing is religious. The employer can refuse to give him time off for any reason at all, as long as that reason is not the religious nature of the activity he wants to undertake (or any other prohibited ground, of course).If you start down the line of well, the time off is part of religious observation, or the ad is religious and can't be separated from the person, then you are heading down the road where you are asking the courts to decide about the quality of a religious belief. And they don't want to do that, and they have said that on numerous occasions . . .
What I’m saying is that, if the employer allows time off for the non-religious activity, but refuses time off for the religious activity, then he has a problem. He has to be able to justify that without reference to the religious quality of the employee’s activity. (Maybe he can justify it. Maybe the Muslim employee does a job which can’t accommodate absences in the way that the other person’s job can, for example).
Similarly, if you accept the non-religious-but-otherwise-similar ad but refuse the religious ad, you have to able to justify that without reference to the religious nature of the ad you have refused. And in this case, since it’s already explicitly acknowledged that the refusal is because of the religious nature of the ad, the agency is not going to be able to do that.0 -
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Peregrinus wrote: »And as I have said man, many times that is exactly my point. Rejecting an ad because its content is religious-based is affording less favourable treatment on the grounds of religion. That’s what the words mean.
You seem to think that if I discriminate against some religions, that is forbidden by the Act, but if I discriminate against all religion, against religion in general, the Act allows that. I see nothing in the Act to support this view, and if you think there is something in the Act to support it, now would be a good time to point to the provision on which you rely.
Doesn’t matter. Their motive for refusing religious ads is irrelevant. If they refused only Muslim ads because of customer resistance and concerns about reputational damage, you wouldn’t think that gave them an out, would you?
In my example, I mentioned refusing ads from racist or hate groups because of concerns about reputational damage. That’s fine, because racism and hatred are not protected categories. But refusing religious ads because of concerns about reputational damage would not be fine, because religion is a protected category
Sigh :rolleyes:. No, they don’t treat everyone equally. The treat people placing religions ads differently from people seeking to place religious ads differently from people seeking to place ads which are non-religious, but otherwise similar. That's not equal treatment.
At this stage, we're not going to agree, we're repeating the same points and are just going around in circles, so I'm washing my hands of this
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Join Date:Posts: 26391
Peregrinus wrote: »Peace, man!
(We're agreed, I think, that the law should allow the cinema to decline the ad. What we disagree about is whether it actually does allow it.)
For now we can however likely assume the law does allow it, until a court rules otherwise of course
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OK, I think we are at risk of being told off again, who can forget colander-gate, but I am going to go for one more (at least
) post on this. I won't do a paragraph by paragraph, but will just do a block response below. It will be a general response, so forgive me if I miss any specific points you have raised, but I expect it will address all your points adequately.Peregrinus wrote: »Sure. And if the cinema didn’t take ads at all, there’d be no case for saying that they must take religious ads. But, given that they do take ads, then the law requires them not to discriminate against customers on the grounds of religion. And a refusal to take religious ads certainly looks like discrimination on the grounds of religion, no?
Possibly the law should, as I have already acknowledged. My point is that this law doesn’t seem to do that. It seems to me that, if advertising agencies are to be allowed to refuse to take religious ads, there needs to be some qualification or exception to the general rule that affording less favourable treatment on the grounds of religion is forbidden. And I don’t see that qualification or exception in the Act. Do you?
No, it’s not. If the agency had a policy of accepting Christian ads but not Muslim ads, or "support traditional marriage" ads but not "support SSM" ads, you wouldn't assert that to defend against a discrimination claim “it is sufficient to say the [rejected] ad did not comply with DCM's policies regarding what it would or would not accept”. The significant issue, surely, is not whether an ad complies with DCM’s policy, but whether DCM’s policy is consistent with the requirements of the equality legislation?
“The protected characteristic is sexual orientation, not sexual activity.” This won’t fly, MrPudding. Broadly speaking, gay sex is had by gay people because they're gay. Religious ads are placed by religious people because they're religious. In both cases there could be exceptions, but the correlation is strong enough to make a nonsense of any defence that seeks to distinguish between those gays/Christians ("I love them all!") and that gay sex/Christian witness ("Ugh!")
I concede that there can be a blurry line in this area. In Asher’s Bakery, the court proceeded on the basis that refusing to accept an order for a “support SSM” cake was discrimination on the grounds of sexual orientation, even though a straight person can obviously support, and campaign for, SSM, and can seek to order a cake for that purpose. I think that finding is a bit iffy, as I think I’ve already said. But if that one is even arguable, this one is a slam-dunk. There may be a fuzzy line over where, exactly, an act motivated by a protected characteristic can be treated distinctly from the characteristic for the purposes of the equality legislation, but this particular example is nowhere near that line. The placing of this ad can’t honestly be described as “vaguely related” to the religious characteristic of the people placing the ad. Professing religious beliefs is to religion what having sex is to sexuality!
For a comparator, there does need to be a change in treatment. Remember, what the act forbids is “less favourable treatment”. If you compare yourself with somebody who actually got the same treatment as you, there is no “less favourable treatment”, and the question of whether the less favourable treatment was afforded on one of the prohibited grounds is meaningless. The comparator has to be somebody afforded different treatment (in this instance, someone whose ad was or would be accepted); only then can we explore whether the difference in treatment was afforded on prohibited grounds.
On your argument, it seems that an employer accused of discrimination for refusing to hire a woman could point to a man who he had also refused to hire and say “Look! No gender discrimination!” But that won’t wash; the comparators are the people who are or would be hired, not the other unsuccessful candidates.
No, no. A comparator who’s “not doing something” is no use. If it were, then some arbitrary individual who is neither seeking to place an ad with DCM nor employed in your hypothetical - myself, for example, or yourself - would be a valid comparator in both instances, which is nonsense. The comparator has to be someone who seeks (and gets) the treatment that the complainant seeks (and is refused). Then, and only then, can we explore whether the difference in treatment is afforded on a prohibited ground.
Yes, I agree with all that. (Warm feelings again!)
But I’m not starting down that road at all. I haven’t suggested, and don’t suggest, that the Muslim employee must get time off because what he is doing is religious. The employer can refuse to give him time off for any reason at all, as long as that reason is not the religious nature of the activity he wants to undertake (or any other prohibited ground, of course).
What I’m saying is that, if the employer allows time off for the non-religious activity, but refuses time off for the religious activity, then he has a problem. He has to be able to justify that without reference to the religious quality of the employee’s activity. (Maybe he can justify it. Maybe the Muslim employee does a job which can’t accommodate absences in the way that the other person’s job can, for example).
Similarly, if you accept the non-religious-but-otherwise-similar ad but refuse the religious ad, you have to able to justify that without reference to the religious nature of the ad you have refused. And in this case, since it’s already explicitly acknowledged that the refusal is because of the religious nature of the ad, the agency is not going to be able to do that.
First, the comparator. In the McFarlane case a counsellor was dismissed because he said he would not provide counselling to same-sex couples because of his religious belief. He took an unfair dismissal action. McFarlane claimed both direct and indirect discrimination. We have not talked about that here, so far, but I think it is time we did.
In the Employment Tribunal (ET), when looking at the claim of direct discrimination, they used a comparator. This is what they said:ET wrote:"[W]e concluded, firstly, that it was necessary for an actual or hypothetical comparator to be identified and, secondly, that an appropriate comparator would be another counsellor who, for reasons unrelated to Christianity, was believed by the respondent to be unwilling to provide PST counselling to same sex couples and therefore unwilling to abide by the respondent's Equal Opportunities and Ethical Practice Policies. The question, therefore, is whether the respondent would have treated [such] a comparator differently, and in our view it would not.
In his appeal McFarlane argued that this was not a valid comparator as it ignored the need to protect the manifestation of the religious belief as well the holding of the belief. This was rejected by the Employment Appeals Tribunal (EAT) and this rejection was upheld by the Court of Appeal (by my favoritely named judge, I might add, Lord Justice Laws.)
If we apply this to the DCM scenario it would suggest that the correct comparator is as I suggested, a person that does not share the same religion as the person trying to get the ad aired who trying to get that same ad aired. I believe the outcome would be the same, DCM would refuse to air the ad. Personally I don't think it would need to be the same ad, I believe another ad that fell foul of the same policy would suffice.
So that is direct discrimination dealt with, which brings us to indirect discrimination. This is, in short, a policy or practice that applies to all, but would have a disproportionate effect on a subset of people, and that subset can be defined by possession of a protected characteristic. The DCM policy applies to all people trying to place ads with them. Persons trying to place ads of a religious nature are considerably more likely to be religious people, therefore, a ban on airing religious ads is more likely to impact a religious person. It seems likely that DCM's policy indirectly discriminates against the religious. But wait...
Unlike direct discrimination, it is possible to justify indirect discrimination. Indirect discrimination is "ok" when it can be shown to be a proportionate means to achieve a legitimate aim. The aim of the DCM policy is to protect its business interests and not alienate sections of its customer base, or more specifically, its customer's customer base. It tries to achieve this by having a policy of not accepting ads related to religion or politics which tend to be highly polarising.
I believe this is a legitimate aim, but is it proportionate? What is the actual impact to the CoE of DCM's policy. DCM controls advertising on around 60% of the UK's cinema screens, which is quite a lot. What it doesn't control is billboards, newspaper advertising, television advertising, the ads above urinals in motorway service stations, what is said in churches or what is said in schools controlled by the CoE. In the grand scheme of things, therefore, this refusal to air an ad actually has a very small impact on the CoI's ability to get its message out, so I think it could be validly considered to be a proportionate means to achieve a legitimate end.
If you were still unsure about the proportionality we could probably also look at the cinema goers rights. They have a right to their religious belief, or non-belief, and would likely have a reasonable expectation of not having manifestations (however inoffensive some might consider it) of someone else's religious belief foisted upon them when they visit the cinema. Whilst this is directly related to DCM's aim, I think it is a separate and valid argument.
MrP0 -
Peregrinus wrote: »Where's the false witness?
It's in the lying.
Lying is bad.
It's wrong for Catholics to lie, though they have a fabulous get out clause. All they have to do is tell a priest they lied, say they're sorry, say whatever formula of words the priest tells them to say, and they're off the hook.
I don't know if it works that way for Anglicans. Maybe it does, and they've told each other they're sorry and recited their prescribed poems and are now celebrating being forgiven.
Anyway, it's not like there's any supernatural creature out there to make them account for themselves after they're dead, so no problem there then.Peregrinus wrote: »Serious question.
Yeah, right.0 -
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Peregrinus wrote: »Hi Mr P
McFarlane case: I take your point.
I think the difference here is that in the McFarlane case, the complainant had refused to provide sexual counselling to same-sex couples. Obviously, someone might refuse to provide that service for non-religious reasons. Therefore, the hypothetical comparator who refused to provide the service for non-religious reasons was a meaningful concept.
But, in the DCM case, the issue is an evangelising religious ad. It’s hard to see how we can meaningfully picture a comparator who seeks to place an evangelising religious ad for non-religious reasons. The whole point of placing an ad is to persuade people of the message in the ad. And if the agency has to defend its position by appealing to an intrinsically contradictory hypothetical comparator, I’m not sure that’s an ideal defence.
And I think the reason that we have this problem was because, in McFarlane, the employer’s stance was unrelated to religion. They were employing a counsellor; they wanted him to provide counselling; they were completely indifferent as to his religion, if any. They could reasonably present their stance as not being discriminatory on the grounds of religion.
But in the DCM case the agency’s policy is explicitly driven by religion; had the ad not been religious (or political), they would have taken it. They absolutely cannot present their stance as not being discriminatory on the grounds of religion when the only reason they rejected the ad is because it was religious. And the fundamentally contradictory nature of the comparator they are trying to evoke merely highlights this.
There are a couple of problems with your approach here. First, DCM are completely indifferent to the religion of those want to place ads with them. They just want to get paid for ads, just as Relate just want to have people that do their jobs.
The theoretical comparator does not have to be something that is necessarily likely. There was a case brought by a female prison officer complaining of discrimination on the grounds that she had to pat down male prisoners, but male officers did not, and in fact could not, pat down female prisoners. The comparator used in her case was a male officer patting down female prisoners. Even though that was something that could never happen, it was, nonetheless, the correct comparator.
So even though a on-religious person would be highly unlikely to want to pay for an ad evangelising christianly, that unlikeliness, or even impossibility does not stop it from being a valid, and indeed the correct, comparator.
Even if the above was not the case, your position on this has a couple of other problems. First, the ad, or what the ad is, isn't actually important. A non-religious person placing an ad that was against DCM's policy for some other reason would be equally valid for the comparison to be made. So even if the comparator of a non-religious person trying to place the same as was rejected because it probably would not happen in real life (which would not happen) it would be perfectly valid for the comparator to be a non-religious person trying to place an ad that was against DCM's policy for any reason.
This is not some theoretical idea, we know this is the case because we are told it in McFarlane. He tried to argue, as I pointed out in the other post, that a comparator that did not want to prove the counselling for a non-religious reason was not valid because it "diminished or extinguished the need to protect the manifestation of religious belief as well as the fact that the belief is held."
You actually almost seem to be arguing that the ad was discriminated against! Yes, the ad was rejected because it was religious, but the ad is not protected by discrimination laws. If it was, it would have a good case for direct discrimination. But here is where you seem to be having an issue, the ad is, in effect, a manifestation of the religion of the person try to place it. This is where there is a break. One's manifestations are not protected.
No, it applies to all protected characteristics. In any discrimination case the courts will analyse both. They will do direct first, its the show stopper. If they find direct discrimination then the case is over. If there is no direct they will look for indirect. If they found indirect they will see if it is justified. If you read the McFarlane case I linked to in the previous post you will see this kind of analyse.Peregrinus wrote: »Indirect discrimination: First, can I get a nitpick out of the way? I have a vague idea that indirect discrimination is a specific concern only with regard to the gender ground. So, imposing a 180cm height requirement for employment in a particular position (when there is no objective requirement for this) is gender discrimination, since a much smaller proportion of women than men will satisfy the requirement. But am I wrong in thinking that the concept does not extend to cases of discrimination on grounds other than the gender ground?
Which it is.Peregrinus wrote: »OK. Park that. Let’s assume that indirect discrimination is relevant to claims of discrimination on the religion ground.
Apart from you first line, which I will get to below, all agreed here. There was actually an interesting case on this which shows how easy it is to be caught by indict discrimination. A company changed their flexitime policies which meant people had to be in work earlier than had previously been allowed. This was found to be indirect discrimination on the grounds of sex. The reasoning was the earlier time meant dropping kids off to school became more difficult, women were more likely to have kids at school, therefore they were more likely to be negatively impacted by the change than their male colleagues, therefore indirect discrimination.Peregrinus wrote: »I don’t think this is a case of indirect discrimination. Back to the gender ground for a moment; a bar on employing people under 180 cm (without good reason) is indirect discrimination since, to coin a phrase, you don’t have to be female to be under 180cm, but it helps. But a bar on candidates who menstruate would be direct discrimination, since this is an intrinsically female thing do. (It would be direct discrimination even though obviously a proportion of women have ceased menstruating, and wouldn’t be affected by the bar.)
OK, this should pretty simple. Evangelising is a manifestation of religious belief. A person's right to evangelise will not, necessarily, be protected by the law, check out the Wasteney case.Peregrinus wrote: »So, what we have here is a bar on “evangelising”, if what you are evangelising for is religion (within the extended meaning given in the Act). And, since evangelising for religion is an intrinsically religious activity, if this is discrimination at all then it’s direct discrimination. Evangelising for religion isn’t something that is mostly done by religious people; it’s an intrinsically religious thing to do.
Of course it is is a legitimate aim! Your Air France example is completely different. Religion and politics are highly polarising, added to this, people can be stupid. They want to avoid alienating customers as alienating customers is extremely bad for business, and they are a business. And remember, the owners of a business owe duties to that business. Disappointing some pervy passengers cannot be equating to alienating a large percentage of one's customers, particularly considering some of those customers were likely to have difficulty understanding that accepting money to air an ad did not necessarily mean the same thing as endorsing that ad.Peregrinus wrote: »For what it’s worth, if this were indirect discrimination, I don’t think that “protecting business interests . . not alienating customers” would necessarily stack up as a legitimate aim in this case. It’s long established that the expectations of customer that air hostesses will be nubile and firm-breasted does not justify imposing a lower retirement age on female cabin crew. That was direct discrimination, of course, but if Air France had tried to justify a height requirement on the basis that customers expected tall, leggy hostesses, I don’t think they’d have been any more successful.
Yes, they are both rights, and they are qualified rights. And, you are again ignoring the Freedom of Religion also encompasses freedom from religion and one party's right to evangelise is in direct opposition to another person's right not to be evangelised to.Peregrinus wrote: »Freedom of religion is a right recognised by the ECHR, as is freedom of expression, so I’m not sure that the court would necessarily feel obliged to accept that cinema audiences, who know that advertising slots are for hire to the highest bidder, would expect them to be barred to people with religious or political messages. Or, that if they did expect that, it’s an expectation which the courts should indulge, by treating it as something which would justify discrimination that would otherwise be unlawful.
So if a court was assessing if the refusal to accept a religious ad was a proportionate means to achieve a legitimate aim I am pretty sure they would find it was.
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Plus the fact that freedom of religion and freedom of expression does not mean the cinema is required to provide a platform for them.
No more than a church hall would be obliged to give AI or Abortion Rights Campaign a platform Fingal County Council are certainly not competent to be making decisions about the most important piece of infrastructure on the island. They need to stick to badly designed cycle lanes and deciding on whether Mrs Murphy can have her kitchen extension.
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