Emma Ship writes one of the best blog posts for ‘Equality at Work’ final year module

A blog post written by final year student Emma Ship has been named as one of the three best pieces of summative coursework for the module ‘Equality at Work’. 

Module leader, Sara Benedi Lahuerta, said of Emma’s work “Emma’s essay is well-written, it provides good critical and personal insights, and arguments are well-supported with academic references and examples”.

Read Emma’s essay below

Can Immutability be Used to Justify the Protected Characteristics Under the Equality Act 2010?

The Equality Act 2010 provides nine characteristics, which must be protected under anti-discrimination laws in the workplace.[1] It is widely accepted by the judgment of society that these characteristics are deserving of legal protection. It is not often questioned why these particular grounds have protection when others, such as political opinion, do not. This blog post will be discussing whether the concept of immutability can be used to justify the current protected characteristics. In particular, there will be a focus on religion/belief and sexual orientation as they are arguably the most difficult characteristics to which immutability can be applied.

What is Immutability?

The criterion of immutability has historically been the “lynchpin upon which a restricted regime is based”[2] and has been recognised as a justifying principle of protecting certain characteristics by both the UK and European courts.[3] Immutability is the idea that characteristics should be protected under anti-discrimination laws if they are unchangeable and not chosen.[4] Therefore, the permanence of these characteristics and the fact they are outside the control of the individual means they need to be protected from societal prejudice.[5] For example, characteristics which can clearly be justified by the principle of immutability are race[6] and age[7] which cannot be changed and are not within the individual’s control.

It has been argued that anti-discrimination laws will only be viewed as politically legitimate if its aim is to protect individuals from discrimination arising from something which they have no control over and is very difficult to change.[8] At first glance of the protected characteristics, I would be inclined to agree with this argument. However, when looking in detail at characteristics such as religion it becomes clear that immutability may not be so easily applied.

Can Immutability Justify Protecting Religion and Belief?

Religion/belief is a characteristic which is protected by legislation[9] but is difficult to fit in with the criterion of being immutable. In the case of Eweida v British Airways, Sedley J stated that all of the protected characteristics apart from religion and belief are “objective characteristics of individuals; religion and belief alone are matters of choice”. [10]  Therefore, as it has been recognised by the courts that religion is a matter of choice, it could be argued that its place within the Equality Act 2010 is misguided. An individual’s religion and beliefs can change throughout their lives and, therefore, lack consistency meaning that it may not be a characteristic which could be claimed to be immutable.

Religion/beliefs could also arguably fail the immutability criterion because, unlike race and sex which are established at birth, religion may be something which is instead learnt.[11] It may be analogous to characteristics like political opinion which can adjust due to a change in an individual’s circumstances, current affairs and the effect friends and family have upon them.

However, I would argue that what Sedley J fails to consider in his brief discussion on the lack of immutability in relation to religion in Eweida,[12] is the circumstances in which it could be argued that an individual lacks choice. I believe it is necessary to recognise the assertion that religion may sometimes be arguably out of an individual’s control, especially when considering “the dynamic interplay between various social and cultural pressures in the lives of many individuals”.[13]

After considering both the arguments for and against viewing religion/belief as an immutable characteristic I would argue that the stronger assertion is that religion cannot be justified by the criterion of immutability. Although social, cultural and other pressures may lead to an individual perhaps lacking the freedom to make a completely autonomous choice regarding their religion, to denominate this as an immutable characteristic may undermine others, such as race, where there is a complete absence of choice. It may lead to the possibility of opening the floodgates to allow other factors to be included under the Equality Act[14] which may in turn destabilise the significance of the current characteristics. This begs one to ask the question of whether it should be included within the Equality Act 2010 and, if it should, what principle can be used to justify it.

Can Immutability Justify Protecting Sexual Orientation?

Sexual orientation is also protected by UK legislation[15] but academics have controversially debated the possibility that immutability does not apply to it.[16] Although it is arguable that sexual orientation is not a characteristic that can be chosen or changed, it has been contended that, as there is not a way to prove the existence and immutability of an attraction through scientific measurement (like the way someone’s sex can be established), scientists are unable to conclusively preclude that there is individual choice to sexual orientation.[17]

Academics, including John Gardner, have claimed that the “orientation of our sexual attraction, like our religious faith, might of course change through dramatically life-transforming experiences such as trauma, conversion or brainwashing”.[18] Also, Wintemute has stated that there are few homosexual men who have succeeded in changing to become heterosexual which suggests that although minute, there is still a possibility of change.[19]

However, I believe that sexual orientation is an immutable characteristic which cannot be changed due to the complete lack of supporting evidence and the fact it is just an a priori assumption. In response to Wintemute’s claim that some men have changed their sexuality, we should consider stigmatisation and the fact that homosexuality was illegal until 1967 in the UK.[20] Therefore, up until 1967, instead of actually changing their sexuality, those individuals were responding to society’s norms and pressures and thus felt compelled to appear heterosexual in order to be accepted. Although homosexuality has been legal ever since, the fact that same sex marriage was only legalised in 2014[21] demonstrates that homosexual couples have only just received equal rights. Therefore, until very recently, same sex couples may have – and possibly still do – face stigmatism in everyday life and thus may feel unable to live how they truly desire.

What are the Alternative Justifications?

After considering the application of immutability to religion/beliefs and sexual orientation, I would conclude that religion cannot be justified by immutability, but sexual orientation can. Also, other protected characteristics such as pregnancy[22] and marriage/civil partnership[23] may be a choice and within the individual’s control. However, to omit to protect individuals from discrimination at the workplace based on these grounds appears unjust.

Therefore, perhaps the protected characteristics can be better justified by other principles such as it being a fundamental choice of that individual. It has been stated by academics that it is arguable the protected characteristics are not immutable, but “simply manifestations of a fundamental choice exercised by an individual” which warrants protection.[24] A fundamental choice is something that everyone should have the right to make unconstrained from outside interference.[25] It is linked to concepts such as personal autonomy and dignity and is associated with an individual’s sense of identity.[26] For example, a choice regarding one’s own sexuality may be fundamental to their identity.[27] Alternatively, it could be argued that we should avoid a grounds based idea altogether in recreating a legal approach to discrimination as was suggested in a dissenting judgment in Egan v Canada.[28]

 

Conclusion

To conclude, I would argue that sexual orientation can be justified by immutability and religion/belief cannot. Although immutability sometimes appears to be a sound justification for why certain characteristics, such as race, are protected, when one looks deeper into the matter it is revealed that immutability may be flawed as a way of looking at anti-discrimination laws. The fact that religion/belief cannot be rationalised by immutability demonstrates that perhaps immutability has been misplaced as a criterion which can be used to justify the protected characteristics. Assuming that the nine grounds of protected characteristics are deserving of legal protection, as immutability falls short, perhaps they will be better justified by other principles such as them being a fundamental choice to that individual.

 

Tags:

#Immutability #Protected Characteristics #Religion and Belief #Sexual Orientation #Justification

 

 

[1] Equality Act 2010, s4.

[2] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 415.

[3] For example R (Age UK) v Secretary of State for Business, Innovation and Skills [2010] ICR 260, 297C-E: Blake J and Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des Ministres ECLI:EU:C:2011:100 [50].

[4] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 415.

[5] A McColgan, Discrimination, Equality and the Law (Hart 2014) 53.

[6] Equality Act 2010, s9.

[7] Equality Act 2010, s5.

[8] I. Solanke, ‘Infusing the Silos in the Equality Act 2010 with Synergy’ (2011) 40(4) Industrial Law Journal 336, 349, accessed 14th November 2017.

[9] Equality Act 2010, s10.

[10] Eweida v British Airways plc [2010] ICR 890, 901F.

[11] Jessica A Clarke, ‘Against Immutability’ (2015) 125 Yale LJ 2, 103, 31.

[12] Eweida v British Airways plc [2010] ICR 890, 901F.

[13] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) page 418.

[14] Equality Act 2010.

[15] Equality Act 2010, s12.

[16] For example, R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174-6 and J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[17] R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174-6.

[18] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[19] R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174–6

[20] Sexual Offences Act 1967.

[21] Marriage (Same Sex Couples) Act 2013.

[22] Equality Act 2010, s18.

[23] Equality Act 2010, s8.

[24] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[25] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 418.

[26] D Cabrelli, Employment Law in Context. Text and Materials (2nd ed, OUP 2016) 418.

[27] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 173.

[28] Egan v Canada [1995] 2 SCR 513.