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Abstract
The Employment Equality Directive expands protections for, among others, gays and lesbians from discriminatory employment practices. This directive has been implemented poorly in Ireland, the UK, and Germany, because religious organizations believed their core ideological and material interests were threatened by extending these protections, even though degrees of policy fit vary among all three countries. Furthermore, the European Commission’s enforcement measures have not been effective in securing compliance. The European Commission has permitted noncompliance to continue in Ireland and the UK. Only change in the partisan make-up of the government led to compliance. This article speaks to ongoing debates about the causes of noncompliance with European Union law and how religious groups, not often considered in the scholarly literature, are now trying to limit the effects of European integration.
Acknowledgements
I would like to thank Matthias Staisch and two anonymous reviewers for their helpful comments and suggestions.
Notes
1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
2. However, when the provisions of the Employment Equality Directive are placed in a larger sample size that includes the provisions of other directives, levels of substantive fit do not predict noncompliance (Zhelyazkova Citation2013).
3. Serious questions have arisen about the effectiveness of the EU’s enforcement mechanism, especially the use of financial penalties (Falkner Citation2015).
4. The first was the Racial Equality Directive, which prohibited discrimination in the delivery of public and private goods and services based on a person’s ethnicity or race.
5. How to extend protections to disabled workers was the other major point of contention among Council Members.
6. Denis Staunton, ‘O’Donoghue Happy with Equality Talks Despite EU Doubts,’ Irish Times, October 18, 2000.
7. The other main area of dispute was protection for disabled employees in the workplace. An exception for Northern Ireland to Article 4.2 was also inserted to protect its unique policy of allocating positions according to confession to address past discrimination against Northern Irish Catholics in the public service.
8. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’), Article 4, §2.
9. The Catholic Church led early opposition to the expansion of gay rights as the European Parliament and Commission began to protect the interests of gay and lesbians EU employees and continues to do so (Bell Citation2008).
10. They included Austria, Belgium, Germany, Greece, Italy, Portugal, and the UK (Waaldijk and Bonini-Baraldi Citation2006, 67).
11. For an overview the legal status quo before implementation of the EED in 27 EU member states, see Waaldijk and Bonini-Baraldi (Citation2006), Chapters 3 and 5.
12. In October 1998 Ireland approved the Employment Equality Act, which protected employees from discrimination based on sexual orientation, but contained a broad exemption for religious employers and institutions.
13. Sean Flynn and Alison O’Connor, ‘Churches lobbied on EU directive,’ Irish Times, October 19, 2000.
14. Equality Act 2004, Section 37, (1a-b).
15. In Zhelyazkova and Torenvlied’s (Citation2011) study, while the cases reaching the Formal Letter of Notice stage decreased from 2004 to 2006, after the Commission exercised Article 258 procedures, we do not know if governments actually complied with violations in 2006, only that the number of infringements declined over time.
16. The Irish Independent, ‘Church Schools’ Exemption from Equality Laws at Risk from EU.’ April 5, 2008.
17. John Downes, ‘Church Takes Advice on Equality Finding,’ The Irish Times, April 5, 2008.
18. Education Staff, ‘O’Toole Anger on Equality Line,’ Irish Times, October 24, 2000, p. 51.
19. Dr Claire Hogan, ‘Equality Must Apply in Employment as Well as in Marriage,’ February 17, 2015.
20. Thejournal.ie, ‘Gay Rights Groups Gives Cautions Welcome to Change in Discrimination Laws,’ September 14, 2015, http://www.thejournal.ie/gay-rights-section-37-1669058-Sep2014/, accessed August 28, 2015.
21. The statutory instruments applied to hospitals as well (Coen Citation2008).
22. Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Religion or Belief) Regulations 2003, and Employment Equality (Age) Regulations of 2006.
23. There is strong evidence that a similar Reasoned Opinion was issued against Ireland as well. However, the Irish Office of the Information Commission ruled that the Department of Justice was in its legal rights to refuse an applicant’s request that the Commission’s Reasoned Opinion be made public (Commission Decision, October 8, 2010).
24. European Commission, Reasoned Opinion No. 2006/2450.
25. ‘Tories Defeat Government attempts to force religious bodies to employ gay people,’ January 26, 2010, conservativehome.com, http://www.conservativehome.com/thetorydiary/2010/01/baroness-warsi.html, accessed August 28, 2015.
26. Christian Legal Centre, ‘Guide to the Equality Act of 2010’, http://www.christianconcern.com/sites/default/files/equality-employers%20of%20religion-proof.pdf, accessed August 28, 2015.
27. BAG decision of 30.06.83 case 2 AZR 52/81 NJW 1984, 1917.
28. Case C-43/05, Commission v. Germany, OJ C 82, p. 14.
29. The AAG also implemented the Gender Equality Directive (2004/113/EC) and the Sexual Harassment Directive (2002/73/EC).
30. The Commission identified far more errors in AGG as it related to the Racial Equality Directive (Petričević Citation2015, 66–68).