What is the judicial rationale for introducing the grainger test to qualify beliefs? Section 10 Equality Act 2010 seems very clear that “belief means any religious or philosophical belief”. (Emphasis added) Yet, the employment tribunal in Grainger set down a five limb test which functions to exclude certain philosophical beliefs from protection of the act. But how can that be read to exclude “any” beliefs from protection, however frivolous, or however unsavourily transphobic or fascist they may be? More to the point, how did the tribunal account in this for the word “any”? (Note: I am referring mainly to the judicially set down “grainger test”.)
As revised, I think this question is really asking why the judge in Grainger plc v Nicholson [2009] UKEAT 0219_09_0311 laid down the test that he did, when the statutory provision at hand used more general words. In summary, the reason why the Grainger test does not protect every belief is that the European Convention on Human Rights doesn't either. The judge's conclusions on the ECHR's notion of &quot;belief&quot; are mainly taken from the analysis in a House of Lords case (Williamson, cited below), which is binding precedent on the tribunal on that point. The new thing was drawing the line between &quot;belief&quot; in ECHR jurisprudence, and &quot;belief&quot; in the employment equality regulations, which was justified for two reasons: one, that Parliament demonstrably was trying to make the alignment; and two, that it would be incoherent with the Convention obligations to do otherwise. Note that the definitions in the Equality Act 2010 are carried forward from the 2003 regulations which were at issue in Grainger, the Employment Equality (Religion or Belief) Regulations 2003, so we have to look at this text instead. In 2(1) it said, following amendments in 2006 not shown in the online text: In these Regulations – i. &quot;religion&quot; means any religion, ii. &quot;belief&quot; means any religious or philosophical belief, iii. a reference to religion includes a reference to lack of religion, and iv. a reference to belief includes a reference to lack of belief. This regulation was introduced in order to bring EU Directive 2000/78/EC into UK law. Although the text in the 2010 Act is not identical, it does carry forward the same effect of the Directive, and so the decision still makes sense to apply. Also, Brexit has happened, but that does not displace the reasoning. In interpreting the provision: Because it derives from EU law, which is meant to mean the same thing in other member states, the domestic regulation should be read consistently with the directive. The court can look to EU authorities to find out what the directive ought to mean, although there was not much to look at in this instance. The respondent said that &quot;belief&quot; should be read consistently with the language in the European Convention on Human Rights, concerning religion, belief and discrimination - principally Articles 9(1) and 14. The court was still bound to read the domestic legislation in a way that is at least compatible with the Convention rights, even if the scope of &quot;belief&quot; is not absolutely identical (see paragraph 19 of the judgement), but the most obvious way to make the ideas compatible is if they are the same. The parliamentary history of the amending statute shows indications that it was made in awareness of ECHR case law about &quot;belief&quot;. Courts can sometimes use this kind of information to resolve genuine textual ambiguities. The judge looked to domestic precedent, in particular a decision of the House of Lords (R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15) which looked at the same provisions of the ECHR in the context of a claimed philosophical belief in favour of corporal punishment in schools. This in turn drew on extensive case law, including even an English ecclesiastical case from 1866, as well as many more recent sources from around the world. The thrust of all of this is that not every single possible propositional belief is protected by the ECHR; when it talks about belief it does not mean &quot;a statement which somebody somewhere believes to be true&quot;, but rather refers to certain kinds of philosophical conviction. The application of this idea to employment discrimination is new in Grainger, hence &quot;the Grainger test&quot;, but wrangling over the scope of &quot;belief&quot; is not new. The test itself, set out in paragraph 24, is really a collation of quotations from the various relevant past judgements. I won't try to figure out the exact provenance of all of the words since that is actually already set out in the judgement. But for example, (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. comes from paragraph 36 of Campbell and Cosans v UK [1982] 4 EHRR 293, ... the applicants' views relate to a weighty and substantial aspect of human life and behaviour ... Similarly, (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others is there because of Article 17 of the ECHR, as interpreted in Campbell (citations omitted in this quotation), the expression &quot;philosophical convictions&quot; in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a &quot;democratic society&quot; and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 (P1-2) being dominated by its first sentence This of course raises the question of why the ECHR's scope is what it is. That is somewhat more of a policy question than a legal one, in that the treaty reflects what its parties felt comfortable with agreeing. What matters in legal terms is that the Convention is binding on the UK, and the words that it uses must be interpreted according to what Convention authority (the Strasbourg court) says that they mean.
I was initially going to vote to close this as a political rather than a legal question, however, I think there is scope for separating out the two dimensions. Our society makes a distinction between children and adults by giving them different legal rights, obligations and protections. If you think about it, there are a lot of things beyond sexual activity where the law does this: voting, drinking, military service, compulsory schooling, legal culpability etc. What things are subject to legal restriction is a political distinction. Now, there is no reason politically why these laws could not have been drafted to say "children can do this, adults can do that" and leave it to the courts to decide who is a "child" and who is an "adult". Biologically and emotionally people reach maturity at different ages so this is perfectly sensible. It might even be more just. However, justice is only one thing that we require of our legal system. Among the others are certainty and efficiency. Providing a bright line based on birth date gives certainty. Not requiring the court to deal with this on a case-by-case basis increases efficiency - justice is not free. This is why jurisdictions use age as a proxy for adulthood. As to why they choose any particular age, that is a political question.
Yes, it's legal. It would be lawful discrimination on objectively and reasonably justified grounds Here's why: On the face of it, this is a case of direct discrimination contrary to Section 13 of the Equality Act 2010: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. however, the company may argue that they are taking positive action in line with Section 158 of the Act (emphasis mine): (1) This section applies if a person (P) reasonably thinks that— (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, (b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or (c) participation in an activity by persons who share a protected characteristic is disproportionately low. (2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of— (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity. It is likely that they will be able to justify direct discrimination on the grounds of positive action. The Government's Explanatory Notes on the section express the intent of the legislation as such (emphasis mine): This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim. A clear example is provided: Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them. Furthermore, there is case law to establish that such positive action is entirely lawful: R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) (emphasis mine): Before leaving this topic we would stress that section 158 does not concern what is sometimes called “positive discrimination”; it is more limited and concerns only what the legislation calls “positive action”. In general “positive discrimination” is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158. That position is mirrored in Convention jurisprudence. The point can be well illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8. In that case the applicant was serving a prison sentence in Poland. He adhered strictly to the Mahayana Buddhist dietary rules and requested a vegetarian diet for that reason. This was not provided for him. The prison authorities stated that they were not obliged to prepare special meals for prisoners on the basis of religious belief as a matter of Polish law and that to do so would put excessive strain on them. The application before the court succeeded under Article 9. For that reason the Court did not consider it necessary to address separately the right to equal treatment in the enjoyment of Convention rights in Article 14 (to which we return below). However, in our view, the case of Jakóbski is a good illustration of the principle of equality at work in cases of this kind. What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality. While this judgement concerns itself with positive action on religious grounds, it has broad application to positive action on grounds of sex too, and would be consistent with Article 14 of the European Convention on Human Rights—namely that if the discrimination can be objectively and reasonably justified, it is lawful.
There is a rather elaborate three step analysis that is done in civil rights cases under U.S. precedents. Circumstantial evidence, as opposed to direct evidence of discrimination (which is less frequently available to plaintiffs), is analyzed under a three-part test created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). STEP 1/prima facie case (burden on plaintiff) They belong to a protected class (or the person taking the action thought that they did and alleged acted on that basis) They were qualified for the job and performing in accordance with the expectations of their employer Employer terminated their employment The employer replaced plaintiff with an individual who was comparably qualified to the plaintiff, but not in the protected class. STEP 2 (burden on defendant) Employer must produce evidence that its actions were the result of legitimate and non-discriminatory reasons STEP 3 (burden on plaintiff) Employee must prove that the non-discriminatory reason(s) offered by the employer in Step 2 were not true reasons, but were a pretext for discrimination based on age. In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-7 (2000), the Supreme Court held that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Also, Reeves allows the trier of fact to consider the evidence used to establish a prima facie case of discrimination (first prong of McDonnell Douglas) when they are deciding the final prong of McDonnell Douglas framework. Notably, the Supreme Court later held that “[t]he reason for treating circumstantial and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957)). The &quot;quote&quot; above adapts and closely paraphrases this source. A jury doesn't have to believe the testimony of the employer and discovery through depositions and written communications and historical hiring and firing patterns can all be used to provide evidence that the claimed reason is pretextual. There are more than a dozen tactics for proving that a claimed reason is really a pretext for an invalid reason at trial.
The power definitely exists, and it is also said by some (respectable persons) that they have a duty to do so. There are many schools of legal interpretation. One trend is to attempt to discern legislative intent, based on whatever facts there might be such as newspaper articles or legislative committee reports. A contrary trend is to look exclusively at the text enacted by the legislature – this school is known as the Textualist school, and is currently dominant in the US Supreme Court. There are also non-textualist &quot;progressive&quot; trends that seek justice according to some social principle, rather than the text of the law or the definitive intent of the original legislators, which may address the situation that you have in mind. In civil cases, statutory law tends to be rather unclear, allowing a judge to decide on the basis of their beliefs of what is fair, equitable or just. That is because in the common law, close to a millenium old, judgments were supposed to be &quot;just&quot;. In the US, much of the common law has been re-coded as statutory law, and in that case, the intent of the legislature is really to &quot;encode the sense of justice implicit in the common law&quot;. This does not mean that trial judges have unlimited power to set aside the words of existing laws. Their primary obligation is to apply the law literally, as interpreted by their superiors (appellate courts). When the higher courts are silent and when the legislature is not clear, the trial judge has some leeway to follow whichever jurisprudential philosophy they adhere to.
This is known as the "ministerial exception". Because the Free Exercise and Estalishment clauses of the First Amendment prohibit the government from interfering with religion, the government cannot override a doctrine that contradicts the teachings of a religion (so women and gays cannot sue the Catholic church for not being hirable as priests). In Hosanna-Tabor v. EEOC, an individual taught classes and led prayer at a religous school, but was fired ultimately due to a disability (narcolepsy). The Lutheran church does not have any known doctrine condemning narcolepsy: but it was unanimously ruled that "the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own". Thus the church was legally permitted to fire the individual due to her disability.
The phrase "reasonable doubt" was formed hundreds of years ago, and does not hold any mathematical or probabilistic meaning. It is for each individual juror to decide for themselves what constitutes "reasonable doubt", and whether the evidence presented to them has crossed that threshold. EDIT for extra clarity: As stated above, the definition of "reasonable doubt" is intentionally vague*, and left to be decided by each juror for themselves on a case by case basis; as such there is no single rule that can be applied to jurors (also note barring accepting a bribe, a juror cannot be legally sanctioned for their conduct as a juror, nor their vote, regardless of the evidence before them). So one juror might judge by P(A|B), another might judge by the defendant's appearance, another might judge by the majority of their peers (so that they can go to a ball game that evening, such as in the film 12 Angry Men), another might disagree with the law (see: jury nullification) and so vote not guilty on that basis, and another might bow to social pressure and convict despite overwhelming evidence that the defendant is not guilty (for example, at the end of To Kill A Mockingbird). A prosecutor cares about convincing the entire jury that the defendant is guilty(outside of Oregon and Louisiana, where only 10/12 vote is needed to convict, so the prosecutor only cares convincing 10 jurors). The defense only cares about convincing a single juror (or three in LA or OR), although more can be useful to prevent a mistrial. The defense (in theory) should not care whether or not the defendant is guilty. *The origin of reasonable doubt was in Britain, where certain jurors would refuse to convict, despite any evidence, due to religious prohibitions of "Judge not, less ye be judged".
In your example, there is nothing that indicates to me that there is a "particularized and objective basis for suspecting the particular person stopped of . . . criminal activity". If you have described the totalilty of the circumstances, the officer does not have the right to arrest or detain the individual. To your broader question about how specific descriptions must be in order to provide a basis for a stop, the assessment is based on the "totality of the circumstances". For example, an anonymous tip that "a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light [carrying cocaine]" was enough to warrant a stop. Alabama v. White, 496 U.S. 325 (1990)1 In contrast, the court "determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun." Florida v. J. L., 529 U. S. 266 (2000) The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Navarette v. California 572 U.S. ___ (2014) In any case, a crime must be part of the particularized suspicion. 1. This case focused on the indicia of reliability necessary for an anonymous tip to support a reasonable suspicion, but it is also an example of a degree of non-specificity in identification of a suspect.