Tracing the Scope of Religious Exemptions under National and EU Law: Section 37(1) of the Irish Employment Equality Acts 1998?2011 and Ireland's Obligations Under the EU Framework Directive on Employment and Occupation, Directive 2000/78/EC

AuthorAmy Dunne
PositionExternal PhD Candidate in International Antitrust Law, Leiden University (the Netherlands)
Pages33-45
Amy Dunne, ‘Tracing the Scope of Religious Exemptions under National and EU
Law: Section 37(1) of the Irish Employment Equality Acts 1998–2011 and Ireland’s
Obligations under the EU Framework Directive on Employment and Occupation,
Directive 2000/78/EC’ (2015) 31(81) Utrecht Journal of International and European
Law 33, DOI: http://dx.doi.org/10.5334/ujiel.dh
RESEARCH ARTICLE
Tracing the Scope of Religious Exemptions under
National and EU Law: Section 37(1) of the Irish
Employment Equality Acts 1998–2011 and Ireland’s
Obligations Under the EU Framework Directive on
Employment and Occupation, Directive 2000/78/EC
Amy Dunne*
This submission traces the scope of the religious exemptions for religious organisation both
under the Irish Employment Equality Acts 1998–2011 at national level and under the EU Frame-
work Directive on Employment and Occupation, Directive 2000/78/EC of November 2000, at EU
level. It will be demonstrated that the Irish religious exemptions are broader in scope than those
at EU level and therefore constitute a severe limitation on the equality rights of Irish citizens
falling within protected grounds of non-discrimination other than religion or belief under the
EU Employment Equality Directive. Special regard is had to the limitation of the rights of Irish
citizens falling within the protected ground of non-discrimination on the basis of sexual ori-
entation. It is considered whether, by allowing overly broad exemptions to subsist beyond the
exigencies of a strict proportionality test, the Irish State is in eect giving ecacy to the
typied intolerance between religions organisations and the LGBT community and in so doing,
contributing to the perpetuation of these intolerances in Irish society rather than their erosion.
Keywords: EU employment equality; Irish Employment Acts; Directive 2000/78/EC; Religious
exemptions; Organisations
“Is it the tolerant person who discovers the limits of her tolerance or is it the intolerant one who labels
everything that does not match his or her convictions as intolerable?” 1
I. Introduction
It is contended that a hidden intolerance1 is latent in the overly broad exemptions reserved to religious
organisations under Irish employment equality legislation, which serves to insulate these organisations
from the generally applicable EU grounds of non-discrimination. The overly broad interpretation of the
religious exemptions provided for in the EU Framework Directive on Employment and Occupation2 is partly
attributed to the seemingly wide latitude within the Directive afforded to national practices and constitu-
tional principles. It will be argued in this submission that the Irish Government has exhausted this latitude
far beyond its reasonable construction. Further, it is questioned whether the exhaustion of this latitude – in
the form of overly broad exemptions afforded to religious organisations – is readily reconcilable with the
State’s own self-professed commitment to equality and freedom of religion in its constitutional provisions
and case-law. At a more basic level, this paper seeks to establish that the Irish legislator has failed to comply
with even the unambiguous obligations of the Employment Equality Directive. This is evident in circum-
stances in which derogations from the Employment Equality Directive are expressly prohibited on the basis
* External PhD Candidate in International Antitrust Law, Leiden University (the Netherlands).
1
Johan de Tavernier, ‘Tolerance, Pluralism and Truth’ in Didier Pollefeyt (ed), Incredible Forgiveness: Christian Ethics Between Fanati-
cism and Reconciliation (Peeters Publishers 2004) 118.
2
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and
occupation [2000] OJ L303/16 (“Employment Equality Directive”).
UTRECHT JOURN
AL OF
INTERNATIONAL AND EUROPEAN LAW

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