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Protecting religious and sexual identities:discrimination law or human rights law?

Carney, Damian and Welch, Roger 2011. Protecting religious and sexual identities:discrimination law or human rights law? Contemporary Issues in Law 11 (2) , pp. 94-118.

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Anti-discrimination in the UK is largely based on a ‘one size fits all’ approach, and this has created problems in the contexts of sexual orientation and religion or belief. The Eweida case demonstrates one problem, which is the need to locate a detriment within the framework of direct or indirect discrimination – it is not enough for a claimant to demonstrate that s/he has been prevented from manifesting a religious belief. Secondly, as arguably occurred in Azmi, discrimination which should be perceived as direct is designated indirect so that justification is possible. Thirdly, justification may then be permitted on the basis of the business approach propounded by Bilka-Kaufhaus, when it is more appropriate to decide whether discrimination is lawful by reference to the grounds expressly stipulated in the ECHR. Thus we contend that the Equality Act should be amended to give direct effect to Conventions rights guaranteed by Arts 8 & 9 ECHR. Where there is a conflict of rights it is, generally, our view that priority should be given to rights designed to protect employees from discrimination by employers on grounds of their sexual identity. However, Schedule 9 of the Equality Act does give special exemption to organised religions. We shall present arguments for and against this exemption being retained.

Item Type: Article
Date Type: Publication
Status: Published
Schools: Journalism, Media and Culture
Subjects: K Law > KD England and Wales
Publisher: Lawtext Publishing
ISSN: 1357-0374
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Last Modified: 04 Jun 2017 09:12

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