God, labor, and the law: the pursuit of religious equality in Northern Ireland's workforce.

• Author: Thorpe, Jane Hyatt

1. INTRODUCTION

   Religious sectarianism has permeated life in Northern Ireland for almost 400 years. Like racism and sexism, it creates barriers to achieving equal opportunity. During the last twenty-five years, many policies have been developed in an attempt to deal with these barriers and the societal divide between the minority Catholic community and the Protestant community.(1) The unresolved "national question" (whether Northern Ireland should remain part of the United Kingdom (Protestant Unionist view) or be incorporated into the Republic of Ireland (Catholic Nationalist view))(2) has perpetuated this division and ultimately undermined any action taken to address specific manifestations of the sectarian divide, specifically the employment differential between the two communities.

   Regardless of the ultimate determination of the national question, the British government must take effective action now to protect the rights of both communities in Northern Ireland. While equal employment is a fundamental issue in all societies, it is vital to attaining social justice in Northern Ireland where two distinct communities compete for power and influence. Traditionally, the Protestant community has used economic rights and employment opportunities to maintain its power and authority and to force the migration of prolific Catholics.(3) Because of this dynamic, no progress can be made until the two communities share economic benefits as well as hardships and a belief that employers are as much "ours as theirs."(4)

   The British Parliament passed the Fair Employment (Northern Ireland) Act of 1989(5) (1989 Act) in an attempt to reduce the disparity of employment opportunities between Northern Ireland's Catholic and Protestant communities. Its passage signals what the government describes as its determination "to eradicate job discrimination and to ensure the active practice of equality of employment opportunity in Northern Ireland."(6) The most radical fair employment law ever passed by the U.K. Parliament,(7) it outlaws both direct and indirect discrimination and sets forth a program of affirmative action.

   Despite its breadth, the Act remains an inadequate solution to the problem. Northern Ireland's employment discrimination plight merits additional attention and action because it stems from a violent religious divide.(8) No type of fair employment legislation will be wholly successful until a constitutional guarantee recognizes and protects the rights of the two communities. The British government must consider the efficacy of a Bill of Rights that would provide the foundation for achieving equal employment opportunity.

   Whether or not the British government embarks on constitutional reform, it must confirm its commitment to eradicating religious discrimination in employment through reform of the 1989 Act. The introduction of affirmative action in the Act may serve as a valuable tool to implement change in employment practices and procedures; however, the manner in which it has been enacted precludes significant change within a reasonable length of time. The British government needs to consider implementing preferential treatment or quotas to reverse the trend of Catholic unemployment.

   After tracing the development of the hostility between the Catholic and Protestant communities and its relationship to Northern Ireland's economy, this Note outlines the distribution of employment between the communities and the policies enacted to foster fair distribution. It then addresses the role of religion and sectarian strife in Northern Ireland's experience with employment discrimination, the need for legislative reform of the 1989 Act, and the need to treat the sectarian divide as a constitutional issue.

2. HISTORICAL PERSPECTIVE

   The hostility between Catholics and Protestants in Northern Ireland originated during the seventeenth century.(9) Although Anglo-Norman invasions of Ireland began in 1169, it was not until four centuries later, after the Elizabethan Wars, that James I made it a policy to Anglicize Ireland.(10) Initially, he pardoned the Irish earls, restored their land taken during the Wars, and gave them English titles in return for oaths of allegiance to the English Crown and the Protestant Faith.(11) But shortly afterward, in 1607, the prominent O'Neill and O'Donnell families and their followers left Ireland and sailed for Spain.(12)

   1. The Development of Hostility Between Catholics and Protestants in Northern Ireland

      In response to the "Flight of the Earls,"(13) James I confiscated all land in northern Ireland(14) and colonized the area with English and Scottish settlers (the Plantation of Ulster) in an attempt to extend the industry, character, and loyalty of the English settlers to the Irish.(15) As a result of the Plantation, continued English immigration to the Province, and the birth of new generations, the majority of the Ulster(16) population was English (Anglo-Irish) by 1641.(17) Unionist Thomas Sinclair later noted the lasting effect of the Plantation in 1912, stating: "[W]e Ulster Unionists who inhabit the province to-day [sic], or at least the greater number of us, are descendants of these settlers. The overwhelming majority are passionately loyal to the British Throne and to the maintenance of the integrity of the Union."(18)

      This colonization was not welcomed by the Irish Catholic community that had previously controlled Northern Ireland or by their fellow Irish further south. In 1641, the Irish revolted under the leadership of Sir Phelim O'Neill and his followers.(19) They were angered by their subjection to English rule, the intolerance of the Protestant Establishment toward Catholicism, and, particularly in Ulster, immigrants' domination of Irish lands. Although O'Neill's attempt to seize Dublin Castle was thwarted, the Ulster Protestants were severely terrorized.(20) Many were killed during battle, and others were killed after months of imprisonment, leading historians to portray this as a Protestant massacre.(21) Following these events, separate identities and attitudes emerged, dividing the newly established Anglo-Irish Protestants from the Irish Catholics.(22) This clearly marked the beginning of more than three centuries of conflict among the Irish, Anglo-Irish, and English--a conflict that continues to manifest itself in the form of religious discrimination and intolerance.

      Between 1641 and 1651, Irish Catholics' assertion of control over their province was frustrated further by Oliver Cromwell.(23) By the end of this revolutionary era, he had established the social and economic background for a Protestant Ascendancy class that would dominate Ireland for almost three centuries.(24) Although numerically small, the Anglo-Irish Protestants, with their religious and economic aspirations and loyalty to the British Parliament at Westminster, controlled Ireland's social and economic life and perpetuated religious intolerance.

      The Ulster(25) Protestants' authority and power were confirmed by their resolute victory (with the aid of English supplies) in the Irish Revolution, which occurred from 1688 to 1691.(26) The ensuing Treaty of Limerick symbolized the domination of the Protestant Ascendancy and British control under William III.(27) The British Parliament's subsequent passage of the Penal Laws severely diminished the property and religious rights of the Catholics and formally excluded them from most areas of public life.(28)

      As the Protestant Ascendancy entered the eighteenth century, its strength continued to grow, as did tension with the Catholic community. The Anglo-Irish developed a class consciousness which was attached integrally to their religion.(29) Although Grattan's Irish Parliament (1782-1800) is praised for its strong Irish self-government, social cohesion, and the demise of religious strife, it was formed entirely by Protestant landlords loyal to the British Parliament at Westminster.(30) Although the government offered some relief to Catholics in the form of the "Catholic Relief Acts," this relief was inadequate; Catholics remained barred from public office until 1829.(31) As a result, the unrest continued, reinforced by sectarian divisional mistrust, unemployment grievances, high rents, and mandatory tithes to the Protestant Church.(32)

      In an attempt to soothe the tension, Great Britain signed the Act of Union with Ireland in 1800.(33) This act fused Grattan's Irish Parliament and the British Parliament (Westminster) into one entity.(34) The act provided for Irish representation in the House of Commons in London and made the British Parliament the official legislative body of Ireland.(35) The tension was not alleviated, however, because southern Catholics (Nationalists) argued that Irish people should handle Ireland's affairs, and they promoted their plan of Home Rule. They demanded that Ireland be granted a parliament of its own with an executive responsible to the Irish legislature.(36) Civil war was forestalled only by the outbreak of World War One.(37)

      After the war, the British Parliament passed the Government of Ireland Act of 1920 in another attempt to soothe the tension.(38) This act created two parliaments--one with jurisdiction over the six counties in the North and one with jurisdiction over the twenty-six counties in the South--joined together by a Council of Ireland.(39) This act was the defining element of Northern Ireland's ostensible autonomy from the British government. Its Parliament, referred to as Stormont, was entrenched by a Unionist majority loyal to the British government.(40) The south of Ireland convened a Parliament composed of Nationalists who sought total independence from British control, not merely nominal legislative freedom.(41)

      The unrest persisted, forcing the British government to create the Irish Free State in 1921, which gave dominion status to Southern Ireland.(42) Southern Ireland quickly outgrew this limited autonomy. The new...