Curt Surls is an Attorney in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination.
Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need when facing any of the following legal challenges:
Other labor and employment law issues
Trained as a mediator, Mr. Surls uses his negotiation skills to resolve his clients' conflicts without the need for court intervention. However, he will not hesitate to take a matter to court to achieve the positive results his clients expect and deserve. He has handled hundreds of cases before state and federal courts. In all cases, Mr. Surls fights hard to protect the rights and liberties of his clients, and his law firm has earned a reputation as one of the region's top employment law practices.
1500 Rosecrans Ave #500,
Manhattan Beach, CA 90266.
Phone: (310) 706-4055
Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties.
The U.S. Supreme Court recently issued an opinion that reverses Obama era National Labor Relations Board’s interpretation of the National Labor Relations Act (hereinafter “NLRA”) that individualized arbitration provision in employment contracts were not enforceable.
In Epic Systems Corp. v. Lewis, the Supreme Court addressed whether employment contract provision requiring individual arbitration between the employer and employee, instead of collective or class action, is enforceable. In doing so, the opinion also decides two other cases presenting substantially the same issue, Ernst & Young, LLP v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc. Ordinarily, Federal Arbitration Act requires that courts recognize and enforce the parties’ arbitration agreement. The exception is where the agreement’s provision violates another federal law. In these cases, the employees argued that the individualized arbitration requirement violates the NLRA.
Majority opinion, written by Justice Gorsuch, noted that “[a]lthough the Arbitration Act and the NLRA have long coexisted—they date from 1925 and 1935, respectively— the suggestion they might conflict is something quite new. Until a couple of years ago, courts more or less agreed that arbitration agreements like those before us must be enforced according to their terms.” The Court explained that “[i]n 2012, the Board— for the first time in the 77 years since the NLRA’s adoption—asserted that the NLRA effectively nullifies the Arbitration Act in cases like ours.”
Majority opinion noted that the origin of the Federal Arbitration Act was from a perception, perhaps justified, that courts were hostile to arbitration agreements and regularly refused to recognize their validity. Therefore, Congress passed the Arbitration Act that “establishes ‘a liberal federal policy favoring arbitration agreements.’” Also, “[n]ot only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures.” Thus, “[o]n first blush, these emphatic directions would seem to resolve any argument under the Arbitration Act. The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures. And this much the Arbitration Act seems to protect pretty absolutely.”
Employees sought to avoid individualized arbitration due to the Arbitration Act’s savings clause, which “allows courts to refuse to enforce arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract.’” Employees argued that “illegality under the NLRA is a ‘ground’ that ‘exists at law . . . for the revocation’ of their arbitration agreements, at least to the extent those agreements prohibit class or collective action proceedings.
The Court went on to explain that even if the employees’ argument could survive various issues that may not be in their favor, the fundamental problem is that “the saving clause recognizes only defenses that apply to ‘any’ contract. In this way the clause establishes a sort of ‘equal-treatment’ rule for arbitration contracts.” In essence, “the saving clause does not save defenses that target arbitration either by name or by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of arbitration.’”
The Court also rejected the argument that in these circumstances, the NLRA displaces the mandates of the Arbitration Act. “A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing ‘a clearly expressed congressional intention’ that such a result should follow.” The employees failed to do so here. A hardly surprising result, explains the Court, considering that “[t]he notion that Section 7 [of the NRLA] confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935. Federal Rule of Civil Procedure 23 didn’t create the modern class action until 1966; class arbitration didn’t emerge until later still; and even the Fair Labor Standards Act’s collective action provision postdated Section 7 by years.”
Epic Systems Corp. and related cases signals a return to pre-2012 era when individualized arbitration provisions were enforced by the courts. Unless the law is amended by Congress, employers will be able to contract with employees to foreclose collective or class action when employment contract dispute arises. The case is Epic Systems Corp. v. Lewis, No. 16-285, decided May 21, 2018.
The full article will be published on the Blog of Mr. Surls at https://CurtSurlsBlog.Blogspot.com
*** Curt Surls is a Specialist in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: https://www.curtsurlslaw.com/; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33
Manhattan Beach, CA (August 2018) The Law Office of Curt Surls announced today that employment attorney Curt Surls has been selected among LawDragon’s 2018 choice of 500 Leading Plaintiff Employment Lawyers. This selection is the result of LawDragon’s “research-driven, journalistic process that vets the views of peers and competitors, and recognizes those who are winning big for workers.”
Curt stated, “As you can imagine, I am very honored and humbled to be considered, let alone being asked to join, a distinguished group of talented lawyers.” He went on to add “I hope my clients find me to be attentive, prompt, courteous and someone that pays attention to detail when representing them. These are all the qualities you would expect and want from an experienced attorney.”
Mr. Surls specializes in Employment Discrimination, Sexual Harassment, and Wrongful Termination. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need when facing employment discrimination, sexual harassment, wrongful termination, workplace investigations, age discrimination, and disability discrimination. Curt Surls is a frequent speaker and presenter on legal matters. Most recently, Mr. Surls was asked by the Los Angeles County Bar Association (LACBA) to speak in September 2018 on a panel regarding “Workplace Investigations: What Works and What Doesn't.”
About Curt Surls, Attorney at Law
The list of the 500 Leading Plaintiff Employment Lawyers is at http://www.lawdragon.com/2018/08/03/lawdragon-500-leading-plaintiff-employment-lawyers/
Curt Surls is an attorney in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination.
1500 Rosecrans Ave #500,
Manhattan Beach, CA 90266.
Phone: (310) 706-4055
Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties.
Law Firm Website: www.curtsurlslaw.com
Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/
LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/
Attorney Profile in “Super Lawyer” Directory: https://profiles.superlawyers.com/california-southern/manhattan-beach/lawfirm/law-office-of-curt-surls/7d7bf48f-c2ff-4237-9fde-9017064c7ce2.html
Martindale Attorney Directory: https://www.martindale.com/manhattan-beach/california/curt-l-surls-173396-a/peer-reviews/
Nolo Attorney Directory: https://www.nolo.com/lawyers/profile/law-office-curt-surls
Here is more information about the inclusion of Curtis Surls in the Plaintiff Employment Lawyer Directory.
The Law Office of Curt Surls announced today that Employment Lawyer Mr. Surls has been asked by the Los Angeles County Bar Association (LACBA) to speak in September on a panel regarding “Workplace Investigations: What Works and What Doesn't.” The panel will be comprised of experienced workplace investigators. Attorneys Ann Fromholz (defense) and Curt Surls (plaintiff) will discuss the best practices for conducting a workplace investigation. On the panel will also be Ann Kotlarski (arbitrator & mediator).
The materials and discussion they provide will be practical pointers on a wide variety of related topics including:
• Tips for representing your client during a workplace investigation
• Deposing the investigator
• Mistakes made by employers during an investigation
• The impact of the current #MeToo climate upon investigations
Curt Surls is a Specialist in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination with nearly 30 years of experience focusing almost exclusively on this area of law.
Mr. Surls stated “I am grateful for the opportunity to share my experience of almost 30 years and to join such distinguished panelists. Internal workplace investigations are an important risk management tool for employers when there are allegations such as harassment. I am truly looking forward to this workshop.” He then explains in more detail: “A few years ago in the case of Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009), the Supreme Court reminded employers of their duty ‘to ferret out and put a stop to any discriminatory activities’ in the workplace. It instructs employers ‘to adopt and strengthen procedures for investigating, preventing, and correcting discriminatory conduct.’”
The Law Office of Curt Surls provides the personalized assistance and effective support his clients need when facing any of the following legal challenges:
Other labor and employment law issues
Mr. Surls received his B.A. from the University of Iowa and his J.D. from Loyola Law School (Los Angeles) in 1988. in 1988, Mr. Surls was admitted to the California Bar. Mr. Surls began his legal career with the Legal Aid Foundation of Los Angeles, initially as a law clerk and later as a staff. Mr. Surls is involved in a number of organizations such as the Executive Committee of the Los Angeles County Bar Association Labor and Employment Section and served as Section Chair in 2015-2016. He also was Chair of the Section’s 2012 Labor and Employment Law Symposium. He has also served on the Fair Judicial Election Practices Committee and the Judicial Election Evaluation Committee and served as Vice President of the Board of Directors of the Disability Rights Legal Center (www.disabilityrightslegalcenter.org) from 2008 to 2010.
Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland, California civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the State of California as counsel to the Director of the Department of Industrial Relations.
Mr. Surls' articles on Employment Matters are at http://celavoice.org/category/curt-surls/
Mr. Surls' blog is at https://curtsurlsblog.blogspot.com/
September 12, 2018 "Workplace Investigations: What Works and What Doesn't" - Program Information:
Come join our panel of experienced attorney workplace investigators Ann Fromholz (defense) and Curt Surls (plaintiff) to discuss best practices for conducting a workplace investigation. The materials and discussion will provide practical pointers on a wide variety of topics.
Respected Employment Specialist Curt Surls starts legal blog and commentary on complex Employment Law matters
Manhattan Beach, CA, June 20, 2018 – Curt Surls, a highly respected Employment Law specialist based in California, announced today his new legal blog http://CurtSurlsBlog.blogspot.com/ which will focus primarily on complex legal issues in Employment Law.
Employment Law Specialist Curt Surls has launched a blog with legal commentary and analysis of complex Employment Law issues. “With all the recent news and misinformation regarding Employment Law, I felt that I could help explain the truths behind the real issues at hand” said Curt Surls. “As a legal practitioner, I am sharing the experience I have gained in almost 30 years of solving complex Employment Law problems not only for individuals but for small businesses as well,” Curt added.
The Blog features legal analysis and commentary on precedential court decisions, as well as regulatory developments. It will also include commentary on new legal and regulatory developments.
For example, the Blog includes several specialized articles previously published on the website of the California Employment Lawyers Association (CELA) (http://celavoice.org), such as “Bill protecting workers from forced arbitration awaits Governor approval,” and “Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace.”
Curt Surls is a Specialist in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, his law firm offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need when facing Employment Discrimination, Sexual Harassment, Wrongful Termination, or various types of discrimination. Website: https://www.curtsurlslaw.com. Mr. Surls is a Fellow of the College of Labor and Employment Lawyers (see https://www.laborandemploymentcollege.org/leadership/fellows), and is listed in the “Super Lawyer” Director, https://profiles.superlawyers.com/california-southern/manhattan-beach/lawfirm/law-office-of-curt-surls/7d7bf48f-c2ff-4237-9fde-9017064c7ce2.html
In reviewing consolidated cases and applying balancing tests, European Court of Human Rights finds in one case that the United Kingdom failed to adequately protect the complainant’s right to manifest her religion at the workplace; the Court finds no violation of the European Convention on Human Rights in the other consolidated cases
In the following judgment, the European Court of Human Rights partly sided with complainants who sought to express their religious beliefs at the workplace. Article 9 of the European Convention on Human Rights 1950 includes the freedom to manifest one’s religious beliefs in the workplace. However, where a person’s religious observance adversely affects the rights of others, the contracting states can impose restrictions.
The complainants E, C, L and M had expressed their religious beliefs in various forms at the workplace and suffered adverse action. E worked for British Airways and was not allowed to wear a visible Christian cross at the workplace. The company policy required religious items to be covered by the uniform while at work. C was a nurse who was not allowed to wear a necklace with a Christian cross while handling patients. The hospital policy generally prohibited the use of necklaces to reduce the risk of injury while handling patients. L was a registrar at a local civil registry who refused to be the registrar for civil partnerships. The Borough that employed her had a “Dignity for All” equality and diversity policy which prohibited any kind of discrimination. M was a counselor who refused to work with same‑sex couples. His employer’s Code of Practice and Principles of Good Practice to ensure that no person receives less favorable treatment. The Court consolidated the four cases.
The Court first reviews applicable United Kingdom law, as well as law in the Council of Europe Member States, as well as in the United States and Canada.
“[Council of Europe Member States] 47._An analysis of the law and practice relating to the wearing of religious symbols at work across twenty‑six Council of Europe Contracting States demonstrates that in the majority of States the wearing of religious clothing and/or religious symbols in the workplace is unregulated. In three States, namely Ukraine, Turkey and some cantons of Switzerland, the wearing of religious clothing and/or religious symbols for civil servants and other public sector employees is prohibited, but in principle it is allowed to employees of private companies. In five States—Belgium, Denmark, France, Germany and the Netherlands—the domestic courts have expressly admitted, at least in principle, an employer’s right to impose certain limitations upon the wearing of religious symbols by employees; however, there are neither laws nor regulations in any of these countries expressly allowing an employer to do so. In France and Germany, there is a strict ban on the wearing of religious symbols by civil servants and State employees, while in the three other countries the attitude is more flexible. A blanket ban on wearing religious clothing and/or symbols at work by private employees is not allowed anywhere. On the contrary, in France it is expressly prohibited by law. Under French legislation, in order to be declared lawful any such restriction must pursue a legitimate aim, relating to sanitary norms, the protection of health and morals, the credibility of the company’s image in the eyes of the customer, as well as pass a proportionality test.” [...]
“[United States of America] 48. For civil servants and Government employees, the wearing of religious symbols is protected under both the United States Constitution (the Establishment Clause and the Free Exercise Clause) and the Civil Rights Act 1964. When a constitutional claim is made by a public employee, the courts apply the standard of intermediate scrutiny, under which the Government can impose restrictions on the wearing of religious symbols if the action is “substantially related” to promoting an “important” Government interest (see Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144, 157 (3rd Cir. 2002)). When a statutory claim is made, the employer must have either offered “reasonable accommodation” for the religious practice or prove that allowing those religious practices would have imposed “undue hardship” on the employer (see Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986); United States v. Board of Education for School District of Philadelphia, 911 F.2d 882, 886 (3rd Cir. 1990); Webb v. City of Philadelphia, 562 F.3d 256 (3rd Cir. 2009)). For private employees there are no constitutional limitations on the ability of employers to restrict the wearing of religious clothing and/or symbols. However, the restrictions from Title VII of the Civil Rights Act continue to apply so long as the employer has over 15 employees.” [Page 17‑18]
The Court then cites the relevant language of the Convention:
“51._The first, second and fourth applicants complained that the sanctions they suffered at work breached their rights under Article 9 of the Convention, taken alone or in conjunction with Article 14. The third applicant complained of a breach of Articles 14 and 9 taken together.”
“Article 9 provides:”
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”
“2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“Article 14 provides:”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” [Page 19]
The Court then contemplates how these Articles apply to the cases presented by E, C, L and M.
“1. General principles under Article 9 of the Convention”
“79._The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260A).”
“80._Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article_9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31 and also Leyla ahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005XI). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”
“81. The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011; Leela Förderkreis e.V. and Others v. Germany, no. 58911/00, § 80, 6_November 2008; Jakóbski v. Poland, no. 18429/06, § 44, 7 December 2010). Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, judgment of 26_September 1996, Reports 1996‑IV, p. 1365, § 47; Hasan and Chaush v._Bulgaria [GC], no. 30985/96, § 78, ECHR 2000XI; Refah Partisi (the_Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 1, ECHR 2003‑II).”
“82. Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 § 1 (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009 and, for example, Arrowsmith v. the United Kingdom, Commission’s report of 12 October 1978, Decisions and Reports 19, p. 5; C. v. the United Kingdom, Commission decision of 15 December 1983, DR 37, p. 142; Zaoui v._Switzerland (dec.), no. 41615/98, 18 January 2001). In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 73‑74, ECHR 2000VII; Leyla ahin, cited above, §§ 78 and 105; Bayatyan, cited above, § 111; Skugar, cited above; Pichon and Sajous v. France (dec.), no. 49853/99, Reports of Judgments and Decisions 2001‑X).”
“83. It is true, as the Government point out and as Lord Bingham observed in R (Begum) v. Governors of Denbigh High School case (see paragraph 46 above), that there is case‑law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 § 1 and the limitation does not therefore require to be justified under Article 9 § 2. For example, in the above‑cited Cha’are Shalom Ve Tsedek case, the Court held that “there would be interference with the freedom to manifest one’s religion only if the illegality of performing ritual slaughter made it impossible for ultra‑orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable”. However, this conclusion can be explained by the Court’s finding that the religious practice and observance at issue in that case was the consumption of meat only from animals that had been ritually slaughtered and certified to comply with religious dietary laws, rather than any personal involvement in the ritual slaughter and certification process itself (see §§ 80 and 82). More relevantly, in cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom (see, for example, Konttinen v. Finland, Commission’s decision of 3 December 1996, Decisions and Reports 87‑A, p. 68; Stedman_v. the United Kingdom, Commission’s decision of 9 April 1997; compare Kosteski v. ‘the former Yugoslav Republic of Macedonia’, no. 55170/00, § 39, 13 April 2006). However, the Court has not applied a similar approach in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention, for example the right to respect for private life under Article 8; the right to freedom of expression under Article 10; or the negative right, not to join a trade union, under Article 11 (see, for example, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999VI; Vogt v. Germany, 26 September 1995, § 44, Series A no. 323; Young, James and Webster v. the United Kingdom, 13 August 1981, §§_54‑55, Series A no. 44). Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”
“84. According to its settled case‑law, the Court leaves to the States party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary. This margin of appreciation goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Leyla ahin, cited above, § 110; Bayatyan, cited above, §§ 121‑122; Manoussakis, cited above, § 44). Where, as for the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction (see, mutatis mutandis, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §§ 58‑61, ECHR 2011; see also Otto‑Preminger‑Institut v. Austria judgment of 25 November 1994, Series A no. 295, § 47). Whilst the boundary between the State’s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others, cited above, § 62).”
“2. General principles under Article 14 of the Convention”
“85. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see, for example, Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000IV).”
“86. The Court has established in its case‑law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of Article 14 (Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). ‘Religion’ is specifically mentioned in the text of Article 14 as a prohibited ground of discrimination.”
“87. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (Thlimmenos, cited above, § 44; see also D.H. and Others v. the Czech Republic [GC], no._57325/00, § 175, ECHR 2007; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007).”
“88. Such a difference of treatment between persons in relevantly similar positions ‑ or a failure to treat differently persons in relevantly different situations ‑ is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Burden, cited above, § 60). The scope of this margin will vary according to the circumstances, the subject‑matter and the background (Carson and Others, cited above, § 61).” [Page 29‑33]
The Court concludes as follows:
As for complainant E who worked for British Airways, the necessary fair balance had not been struck. While the employer wishes to project a certain corporate image, small and or discreet religious items will not adversely affect the brand or image. Thus, there was a violation of Article 9:
“93. When considering the proportionality of the steps taken by British Airways to enforce its uniform code, the national judges at each level agreed that the aim of the code was legitimate, namely to communicate a certain image of the company and to promote recognition of its brand and staff. The Employment Tribunal considered that the requirement to comply with the code was disproportionate, since it failed to distinguish an item worn as a religious symbol from a piece of jewellery worn purely for decorative reasons. This finding was reversed on appeal to the Court of Appeal, which found that British Airways had acted proportionately. In reaching this conclusion, the Court of Appeal referred to the facts of the case as established by the Employment Tribunal and, in particular, that the dress code had been in force for some years and had caused no known problem to the applicant or any other member of staff; that Ms Eweida lodged a formal grievance complaint but then decided to arrive at work displaying her cross, without waiting for the results of the grievance procedure; that the issue was conscientiously addressed by British Airways once the complaint had been lodged, involving a consultation process and resulting in a relaxation of the dress code to permit the wearing of visible religious symbols; and that Ms Eweida was offered an administrative post on identical pay during this process and was in February 2007 reinstated in her old job.
94. It is clear, in the view of the Court, that these factors combined to mitigate the extent of the interference suffered by the applicant and must be taken into account. Moreover, in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation. Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.
95. The Court therefore concludes that, in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. In the light of this conclusion, it does not consider it necessary to examine separately the applicant’s complaint under Article 14 taken in conjunction with Article 9.” [Page 34‑35]
As for complainant C who worked as a nurse, the policy of prohibiting jewelry which might injure patients is reasonable. The interference with her freedom to manifest religion was necessary. There was no violation of Articles 9 or 14:
“98. The second applicant’s employer was a public authority, and the Court must determine whether the interference was necessary in a democratic society in pursuit of one of the aims set out in Article 9 § 2. In this case, there does not appear to be any dispute that the reason for the restriction on jewellery, including religious symbols, was to protect the health and safety of nurses and patients. The evidence before the Employment Tribunal was that the applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The applicant was offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high‑necked top worn under her tunic, but she did not consider that this would be sufficient to comply with her religious conviction.
99. The Court considers that, as in Ms Eweida’s case, the importance for the second applicant of being permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida. Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence.
100. It follows that the Court is unable to conclude that the measures of which Ms Chaplin complains were disproportionate. It follows that the interference with her freedom to manifest her religion was necessary in a democratic society and that there was no violation of Article 9 in respect of the second applicant.
101. Moreover, it considers that the factors to be weighed in the balance when assessing the proportionality of the measure under Article 14 taken in conjunction with Article 9 would be similar, and that there is no basis on which it can find a violation of Article 14 either in this case.” [Page 36‑37]
As for complainant L who was a registrar, the local authority’s policy sought to protect the rights of others, which are also protected under the Convention. National authorities have a wide margin of discretion in striking a balance between such competing Convention rights. There was no violation of Article 14 in conjunction with Article 9:
“104. The Court considers that the relevant comparator in this case is a registrar with no religious objection to same‑sex unions. It agrees with the applicant’s contention that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. In order to determine whether the local authority’s decision not to make an exception for the applicant and others in her situation amounted to indirect discrimination in breach of Article 14, the Court must consider whether the policy pursued a legitimate aim and was proportionate.
105. The Court of Appeal held in this case that the aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being “an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others”. The Court recalls that in its case‑law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, §_37, ECHR 2003IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same‑sex couples are in a relevantly similar situation to different‑sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order (Schalk and Kopf, cited above, §§ 99‑108). Against this background, it is evident that the aim pursued by the local authority was legitimate.
106. It remains to be determined whether the means used to pursue this aim were proportionate. The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention. The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007I). In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant.” [Page 37‑38]
As for complainant M who refused to counsel same‑sex couples, the employer’s action was intended to ensure its policy of non‑discriminatory service. Thus, a balance had to be struck between M’s rights to manifest his religious beliefs and the employer’s interest in securing the rights of others. The adverse action against M was within the margin of discretion. There was no violation of Articles 9 or 14:
“109. It remains to be determined whether the State complied with this positive obligation and in particular whether a fair balance was struck between the competing interests at stake (see paragraph 84 above). In making this assessment, the Court takes into account that the loss of his job was a severe sanction with grave consequences for the applicant. On the other hand, the applicant voluntarily enrolled on Relate’s post‑graduate training programme in psycho‑sexual counselling, knowing that Relate operated an Equal Opportunities Policy and that filtering of clients on the ground of sexual orientation would not be possible (see paragraphs_3234 above). While the Court does not consider that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knows will have an impact on his freedom to manifest his religious belief is determinative of the question whether or not there been an interference with Article 9 rights, this is a matter to be weighed in the balance when assessing whether a fair balance was struck (see paragraph 83 above). However, for the Court the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case.
110. In conclusion, the Court does not consider that the refusal by the domestic courts to uphold Mr McFarlane’s complaints gave rise to a violation of Article 9, taken alone or in conjunction with Article 14.” [Page 38‑39]
The partial dissent disagrees with the finding of an Article 9 violation for complainant E. The employer’s workplace policy was reasonable and justified, and the policy was a proportionate means of achieving a legitimate end.
Citation: European Court of Human Rights, Case of Eweida and Others v. The United Kingdom (48420/10) (15 January 2013, final as of 27/05/2013),  I.R.L.R. 231; (2013) 57 E.H.R.R. 8;  Eq. L.R. 264; (2013) 163 N.L.J. 70.