JFS v E: The Intersection of Religion and Ethnicity in Discrimination Cases, Schemes and Mind Maps of Law

Download JFS v E: The Intersection of Religion and Ethnicity in Discrimination Cases and more Schemes and Mind Maps Law in PDF only on Docsity! Racial Groups, Sub-Groups, The Demise of the But For test, and the Death of the Benign Motive Defence R (on the application of E) v Governing Body of JFS [2009] UKSC 15 1. INTRODUCTION On six previous occasions, the House of Lords has deliberated on whether a benign motive can negate liability for direct discrimination or victimisation. With the JFS case, the Supreme Court has added a seventh, and despite nine speeches and a five-four split, this case bring us a step closer to some coherent guidance on the issue. (The six previous case were: R v Birmingham CC ex p EOC [1989] 1 AC 1156; James v Eastleigh BC [1990] 2 AC 751; Nagarajan v LRT [2000] 1 AC 501; Chief Constable of West Yorks v Khan [2001] UKHL 48; Shamoon v Chief Constable of the RUC [2003] ICR 337; St Helens MBC v Derbyshire [2007] ICR 841.) The case centred on the admissions policy of an Orthodox Jewish school. In addition to the ‘benign motive’ issue, the Supreme Court addressed the meaning of racial group where several sub-groups are involved. For many of the speeches, the two issues were intertwined. There was also some discussion on the dividing line between direct and indirect discrimination. 2. FACTS AND DECISION The Jewish Free School’s admissions policy gave preference to children recognised as Orthodox Jewish by the Office of the Chief Rabbi (OCR), which required that the child’s mother be Jewish either by matrilineal descent or by conversion under the OCR doctrine. M was refused admission because he did not meet these requirements. His Italian (previously Roman Catholic) mother was a Masorti Jew convert, a denomination not recognised by the OCR. His father, E, brought claims of direct and indirect racial discrimination under the Education provisions of the Race Relations Act 1976 (RRA 1976), as ‘faith schools’ enjoy an exemption from religious discrimination in their admissions: Equality Act 2006, s 50. (A right recognised by the European Convention on Human Rights, (1st Protocol)). The High Court rejected his claim. The Court of Appeal reversed, holding that the admissions policy amounted to direct discrimination. The Supreme Court, by 5-4 majority (Lady Hale, Lords Phillips, Kerr, Clarke & Mance) affirmed, although two of the minority (Lords Hope, Rodger, Walker, and Brown) found the policy indirectly discriminated, and so a 7-2 majority found in favour of M. (The minority held that there was a prima facie case of indirect discrimination, but only Lords Walker and Brown held that the policy was objectively justified.) 3. ISSUES The principal difficulty in this case is that being Jewish is both a religious and a racial matter. The principal issues were whether the admissions policy was religious and/or racial; and even if it were facially racial, whether the religious motive behind it rendered the ground of the treatment solely religious. 4. RACIAL GROUPS AND ETHNIC ORIGINS Section 3 (1), RRA 1976 defines ‘racial grounds’ to mean ‘colour, race nationality or ethnic or national origins’. In Mandla v Dowell Lee [1983] 2 AC 548 (HL), 562, Lord Fraser provided guidance on the meaning of ‘ethnic origins’. It contained two ‘essential’ and five further ‘relevant’ characteristics. The essential characteristics were: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; and (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. The ‘relevant’ characteristics were: (1) a common geographical origin or descent from a small number of common ancestors; (2) a common language, not necessarily peculiar to the group; (3) a common literature peculiar to the group; (4) a common religion differing from that of neighbouring groups or from the general community surrounding it; (5) being a minority, or being an oppressed or a dominant group within a larger community. Lord Fraser noted that this definition could include converts. It is well established that Jews form a racial group by ethnic origins (ibid 563, citing King- Ansell v Police [1979] 2 NZLR 531 (NZCA)). The JFS case was argued over the ethnic status of Jewish sub-groups. The JFS defence rested on identifying two Jewish groups. First, the OCR group. Second, the Mandla group which is all practising Jews, or those recognisable by ‘the man in the street’. The Mandla ethnic group would exclude some with a matrilineal link to those at Mount Sinai but who have long since abandoned the Jewish faith and may even be unaware of the genetic link. This is because they do not satisfy Lord Fraser’s two essential characteristics. Of course, these persons fell within the OCR group. The JFS argument ran that as the OCR definition includes persons not within the (Mandla) Jewish group, it cannot be based on ethnic origins, or race. It must be solely religious ([30]-[31]). Lord Phillips accepted the first part of this proposition but rejected its conclusion, noting: ‘The fallacy lies in treating current membership of a Mandla ethnic group as the exclusive ground of racial discrimination.’ The requirement for matrilineal descent (cases of conversion to one side) was ‘racial, and in any event, ethnic’ ([42]). Hence, he concluded ([46]): ‘Discrimination against a person on the grounds that he or she is, or is not, a member of either group is racial discrimination.’ Lord Kerr ([121]) explained that although the claimant could be defined as Jewish according to the Mandla criteria, ‘belonging to that group is not comprehensive of his ethnicity.’ There can be ‘mixed ethnic origins that do not fall neatly into one group or category’ and so the claimant also could define his ethnic origins as a half-Italian Masorti Jew ([108]-[109]). That was the ground of discrimination in this case. Similarly, Lord Clarke found that identifying the ground of treatment was not an either/or question (either religion or ethnic). The definition of ethnic origins was more flexible. So it was possible to discriminate on both religious and ethnic grounds ([127]-[129]). Lord Mance suggested that the Orthodox Judaism could be regarded as a separate Mandla ethnic group ([86]), but in any case, M was at a disadvantage because of his descent ([89]). Lady Hale ([66]) held that ‘M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic.’ 5. COMMENT ON RACIAL GROUPS Stripped to its bare bones, the decision means this: The JFS criteria included a racial element: Overall, the majority speeches confirm four rules about applying the ‘racial group test’. First, there can be sub-groups of a racial group. Second, groups or sub-groups may overlap. Third, a sub-group may include persons not included in the parent group, rather like Basques and Catalans include some non-Spanish people (each group straddles the Spanish-French border). Fourth, it makes no difference to liability if the discriminator belongs to the same racial group as the victim. 6. DIRECT DISCRIMINATION AND THE ‘BENIGN MOTIVE DEFENCE’ Section 1(1)(a), RRA 1976, provides that a person directly discriminates if ‘on racial grounds he treats that other less favourably than he treats or would treat other persons.’ The key phrase is ‘on racial grounds’. The next issue was, assuming that the descent requirement was racial, whether the (benign) religious motive behind it rendered the ground of the treatment solely religious, and so not ‘on racial grounds’. That a ‘benign motive defence’ is still being argued is down to some apparently contradictory statements made by our senior judges. Some twenty years ago, the House of Lords held that the ground of the treatment is discovered simply by asking if the defendant treated the claimant because of the protected ground, or even more simply, by asking if the defendant would have treated the claimant so but for the protected ground (respectively, R v Birmingham CC, ex p EOC [1989] 1 AC 1156, at 1194; James v Eastleigh BC [1990] 2 AC 751, at 774B-C). The point of this approach was to avoid questions of defendants’ motive. Otherwise it would be a good defence for an employer to show that he discriminated against a protected group not because he intended to do so but (for example) because of customer preference, or to save money, or avoid controversy (R v Birmingham CC [1989] 1 AC 1156 (HL), at 1194, and see R v CRE ex p Westminster CC [1985] ICR 827 (CA)). Since these pronouncements, a number of judicial statements have suggested a more subjective approach. In Khan v Chief Constable of West Yorkshire [2000] ICR 1169 (CA) [14], Lord Woolf MR observed obiter: ‘To regard a person as acting unlawfully when he had not been motivated either consciously or unconsciously by any discriminatory motive is hardly likely to assist the objective of promoting harmonious racial relations.’ On appeal, the House of Lords appeared to agree by holding that the question was ‘subjective’ ([2001] UKHL 48, [29], [77]) and finding no liability in a victimisation case because the defendant employer had acted ‘honestly and reasonably’. (Ibid, [31]. See also [44], [59], & [80]). Two years later, in a case of direct sex discrimination (Shamoon v Chief Constable of the RUC [2003] ICR 337) the House of Lords did not even mention R v Birmingham CC and James v Eastleigh. Instead, the judgments asked why the claimant was treated so. What few other comments were made on the issue suggested that the finder of fact should look for a discriminatory motive (ibid [55] & 116]), and that the relevant circumstances for the comparison should be those that the defendant took into account (ibid [134]), again pointing to a subjective approach. The majority in JFS dealt with this apparent confusion by reconciling the ‘but for’ and subjective approaches. They did so by identifying two types of direct discrimination ([21]-[23] (Lord Phillips), [62]-[64] (Lady Hale), [78] (Lord Mance), [114]-[117] (Lord Kerr), [132] (Lord Clarke)). There are ‘obvious’ cases, where the reason for the treatment is patently racial (or on another prohibited ground). Presumably, an example would be ‘No Blacks need apply’. In these cases, there is no need to enquire into the defendant’s motive, no matter how worthy it might be. Second, there are ‘less obvious’, cases. Lord Phillips provided a vivid example ([21]): A shopkeeper says to a fat black man, ‘I do not serve people like you.’ A more realistic example was provided by Lady Hale, where in job applications, the patent criterion is ‘that elusive quality known as “merit.”’ In such cases it is necessary to assess the motive of the defendant to ascertain the ground of the treatment, respectively whether it was obesity or colour, or merit or race. The racial bias may even be subconscious, to be discovered by proper inferences from the evidence ([64]). Little was said about the actual application of the but for test. (Lord Phillips ([16]) said he did not find the test ‘helpful’.) The focus was on what the test was intended to avoid: a benign motive defence. The majority agreed that motive was relevant only for the ‘less obvious’ cases, but only to discover the ground of the treatment. If the ground of the treatment is unlawful, a benign motive cannot prevent liability. Hence, for the majority, in this ‘obvious’ case, the school’s religious motive, no matter how worthy, did not preclude liability. That was the technical solution of the majority. There was also a public policy dimension to this case. Nearly all the judges expressed great sympathy for the predicament of the School, having a definition of religion that included a racial element. However, the majority decision shows that even a powerful religious argument cannot outweigh the State’s policy on racial discrimination. As Lord Kerr noted ([119]), although it was ‘logical’ to describe the OCR definition as a religious one, when the answer to that religious question has consequences in the civil law sphere, its legality falls to be examined. If the decision has consequences that are not permitted under the law, the fact that it was taken for a religious purpose will not save it from the condition of illegality. Lord Clarke ([150]) used an extreme case to make the same point: a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly against them without breaking the law. Lord Clarke cited Bob Jones University v US 461 US 574 (1983), where the US Supreme Court upheld the IRS decision to revoke the University’s tax exempt status because it denied admission to anyone engaged in interracial marriage, despite this policy being based on a sincerely held religious belief. He also cited Campbell and Cosans v UK (1982) 4 EHRR 293, [36], where the European Court of Human Rights stated that beliefs ‘must be worthy of respect in a democratic society’ and not be ‘incompatible with human dignity.’ Dissenting, Lords Hope ([201]) and Brown ([247]) in particular relied on the defendant’s motive (implementing Orthodox Jewish law) to hold the ground was solely religious. Lord Hope [197]-[199] stated that the defendant’s motive was relevant even in ‘obvious’ cases. On the Dutch Reformed Church analogy, Lord Hope found this case ‘quite different’ ([202]), whilst Lord Brown did not consider the examples to be ‘parallel’ ([245]). A. Comment on Direct Discrimination (i) The Benign Motive Defence The majority have confirmed a cardinal tenet of direct discrimination - that a benign motive is no defence. But the failure of the minority to confirm this, and the majority’s failure to overrule Khan, still leaves some doubt over the matter. In Khan, it may be recalled, the claimant worker had issued proceedings for racial discrimination. In the meantime, he applied for a job elsewhere. His employer refused to provide a job reference pending the outcome of the proceedings because, according to his legal advice, a reference might prejudice his defence at trial. The worker brought a secondary claim of victimisation. The issue was whether the refusal of a reference was ‘by reason that’ the worker had issued the original proceedings. The House Lords held that the employer acted ‘honestly and reasonably’ on ‘perfectly understandable’ legal advice in reaction to the existence (lawful) - and not the bringing (unlawful) - of the proceedings ([31], [44], [59] & [80].) Subsequently, in St Helens MBC v Derbyshire [2007] ICR 841, a majority of the House tried to explain this case as turning on the fact that claimant had suffered no detriment. (Lady Hale was the exception, stating ([36]) that the ‘honest and reasonable’ defence should be ‘laid to rest’.) But the majority’s view is unconvincing because it was held in Khan that the claimant had suffered a detriment, and in any case, that explanation relied on the unusual fact that the worker’s reference would have been negative, which would reduce its value as a precedent virtually to nil. (See (2009) ILJ Vol 38(2) 149, pp 159-171.) The point for the present purpose is that Khan reveals that the ‘ground’ or ‘reason’ for the treatment is a slippery issue. Was the ground the lawyer’s advice, or the bringing of proceedings, or their existence, or the desire to avoid prejudicing the defence at trial? Of course, it was all of those things. But the exploration into the employer’s motive did not help discover a reason. It was an exercise in semantics that provided what the House considered a just result. The reasons were obvious, and some of them were that the claimant had issued proceedings. As such, Khan does not sit comfortably with the JFS majority’s theory that motive is only relevant in ‘less obvious’ cases. One way to solidify the JFS majority’s rejection of a benign motive defence for direct discrimination is to marginalise Khan to the victimisation cases only. This argument has some substance, as all cases of victimisation have to be poured into the statutory single and rigid formula of ‘direct’ victimisation, which permits no defence. (See ibid, at 174, proposing an additional cause of action of ‘victimisation by proxy’, that would permit a justification defence.) (ii) The But-For Test None of the majority speeches explained quite when the but for test was appropriate. This question was addressed more explicitly by Underhill J in the recent case of Amnesty International v Ahmed [2009] ICR 1450 (EAT). He stated that the but for test was appropriate for both ‘obvious’ and ‘less obvious’ cases, although its ‘real value’ was in the latter, which he labelled ‘mental process’ cases. His approval was somewhat diluted by adding that ([37]): it does not matter whether you describe the mental process involved as his intention, his motive, his reason, his purpose or anything else – all that matters is that the proscribed factor operated on his mind. Underhill J further diluted its value by identifying a third category of direct discrimination where