Policy chief says equality law more nuanced than critics think

A Bill to promulgate equality in the provision of goods and services such as insurance or banking, and in the recruitment of workers in private and public companies, has riled critics who feel the government is attempting a top-down imposition of equalisation at workplaces that are sensitive to “difference”.

Church schools, which provide 40% of teaching posts in Malta – but whose salaries are financed by the State after a land transfer deal with the Curia from the 1990s – are noticeably touchy about the prospect.

In 2014, the Maltese archdiocese started discussions with the heads of church schools on new terms of employment to guarantee that head teachers and other staff can be safely considered to be “practising Catholics” and not people whose “life choices give scandal or run counter to the ethos of the school”.

Already teachers of religion in Malta are, by virtue of its control on the University of Malta’s Faculty of Theology, emissaries of the archdiocese’s Catholic teaching.

“If you are an atheist seeking a post as teacher of religion in a Catholic school, you are in all likelihood unable to claim discrimination by not being selected for the post,” Silvan Agius explains on such extreme examples as are being discussed on social media right now.

The policy director at the civil liberties ministry is keen on emphasising that when a job requires – by virtue of a ‘genuine requirement’ – that a candidate would have to display the necessary loyalty or commitment to school ethos or company culture, it is not discriminatory to turn down someone obviously unsuitable for the post.

“What the forthcoming Human Rights Commission will do is treat every single complaint on a case-by-case basis,” Agius says, as we move on to less harmless examples and one which reflects the reality in certain schools, such as a teacher who is not a practising Catholic applying for a history post in a Church school. In such a case, the question to be made by the prospective employer is: does the religious belief or philosophy amount to a genuine requirement for the teaching of history?

It is this sort of question that the Human Rights Commission will put to employers reported on claims of discrimination. “There is no automatic trigger for a complaint to be turned into a fully-fledged case, if the employer satisfactorily shows why the prima facie complaint is baseless.”

So the history teacher who is not a practising believer – and the reality is that many schools do employ lapsed Catholics – is arguably fit for the teaching post, but Agius also adds: “They cannot break ranks with the school ethos and send out some indirect or direct message that would be in conflict with that ethos, or in this case, religious faith.”

Take the cleaner in the political party headquarters, or a person of trust appointed by government ministers – an example wilfully raised by the Malta Employers Association, which is anxious about the Bill.

“You have to consider that a cleaner could be party to certain confidential documents even by virtue of being, say, inside a party leader’s office. Would, in this case, a political belief congruent to the employer be a genuine requirement? Yes. It stands to reason that the same yardstick applies to persons appointed inside a minister’s secretariat,” Agius says.

The example mutates into similar scenarios: a newspaper can demand that a prospective candidate for a journalist’s post must subscribe to its editorial stand. “You would expect that the editor can prove this editorial stand with the leaders the newspaper has published, for example, to present a reasonable case to the Human Rights Commission that this is a ‘genuine requirement’ for the job.

“And this is what employers must ask themselves: they must assess, at every stage of recruitment, whether the call is based on genuine requirements or not. The Commission will hear both sides on a complaint in a bid to assess whether a genuine requirement was indeed necessary for the job.”

It is at this point that the burden of proof on employers is triggered, or not. “If the employer cannot explain why there was no discrimination, they will have to prove whether there was a genuine requirement or not in refusing somebody a job.”

It is all a question of regulating spaces where equality has to take place: the Equality Bill, three years in the making, is filling up with numerous exceptions of situations that do not constitute discrimination. An example is less favourable treatment on the grounds of religious belief by an institution that is based on such an ethos.

Another exception is the display of religious symbols in public places when they are deemed to have a cultural value; or the wearing of religious symbols.

“You cannot discriminate individually,” Agius says. Citing the example of an airline, the company cannot prohibit an air hostess from wearing a crucifix while allowing a Muslim hostess to wear a headscarf. “The strict policy should be equal for everyone: it is either no religious articles, or allow everyone to display such items. But of course, that does not mean that the airline can deny offering service to a customer for wearing a religious symbol, because that would still be contrary to the law.” 

The Equality Bill

The bill, which is yet to be presented to parliament, has been in the making for two years, when the Ministry first launched a public consultation in February 2014.

Proposals were evaluated, a white paper was launched, and further proposals were taken on board. It is still being fine-tuned, and the process will keep on going until it is finally passed into law.

The bill was discussed with the Malta Council for Economic and Social Development, the Employment Relations Board, the insurers’ association and Church representatives, including with Archbishop Charles J Scicluna himself.

In essence, the law aims to prohibit discrimination in various spheres of life, to promote equality and prevent discrimination. It is far-reaching in the sense that it regulates access to goods and services, advertising, banks and financial services, educational and vocational guidance, workers’ and employers’ organisations, employment, employment agencies, self-employment and insurance.

Whilst it aims to fight discrimination, the bill also provides for ‘special consideration’ where certain actions will not be considered as discrimination: for example, less favourable treatments on the grounds of age and disability in the Armed Forces of Malta won’t be held as constituting discrimination.

If a person is refused employment because of the particular occupational activities concerned, or of the context in which they are carried out, this will not be deemed as discrimination, “as long as such treatment remains within the limits of what is appropriate, proportionate and necessary in the circumstances”.

The less favourable treatment on the grounds of belief, creed or religion in access to the teaching of religion in a Church school – where this less favourable treatment constitutes a genuine, legitimate and justified requirement – will not be considered as discriminatory.

Likewise, the display of religious symbols in public places will be protected when these symbols are considered to have a cultural value.

The bill regulates advertising, reiterating that it would be unlawful to promote discrimination; at the same time, it stipulates that any difference in treatment must be related to a genuine occupational requirement.

Banking and financial institutions cannot discriminate against persons in the access to services provided; the law will however allow for conditions that reflect “genuine considerations” based on the assessment of the financial or insurance risk.

Rejected applicants for a job will be given the right to request and receive from an employment agency information on why their application was rejected

A specific article in the law will protect ‘equal pay for equal work’, to ensure that workers doing the same job are entitled to the same rate of pay for work of equal value.