Religion and Employment Discrimination

The Pope has recently launched an

attack on the UK's anti-discrimination legislation
.

The Pope seems to be referring to certain provisions in the government's Equality Bill which is currently being debated in Parliament —
specifically, the provisions that clarify the conditions in which an employer can lawfully refuse to hire
someone because of their sex or marital status or sexual orientation. According to the bill,
the principal conditions in which a religious organization may do this is when filling positions that "mainly involve (a)
leading or assisting in the observance of liturgical or ritualistic practices,
or (b) promoting or explaining the doctrine of the religion (whether to
followers of the religion or to others)."

According to the Pope, this "imposes … unjust limitations on the freedom of
religious communities to act in accordance with their beliefs, [and] in some
respects, … violates natural law".
I shall argue that on this point the UK government is basically right, and the
Pope is wrong.

The English Roman Catholic Bishops have also
complained about the bill
.
In their view, the Church needs to be able to discriminate on such bases as sex or
marital status or sexual orientation
whenever such discrimination could help to ensure that the
"ethos of the Church permeates every aspect of its activities": this could be important even with "a residential caretaker post if it involves routine
contact with the local Catholic community"; but it is especially important with
positions that have a "representative … role" — which apparently includes
not just "youth workers" but even "parish secretaries."

According to the Bishops, the UK government fails to understand that the ultimate purpose of religion is all-encompassing: "religion
is about the whole of life and the whole person; it is not limited to formal
worship and instruction." But the question is whether
the state should accept this all-encompassing purpose as legitimate grounds for employment discrimination.

The problem is that this all-encompassing purpose of promoting a certain "ethos" could in principle
justify any kind of discrimination whatsoever. For example, imagine a Church of
White-Supremacist Misogynists, whose central religious doctrine is that all
human beings other than white men are wholly despicable. It would be contrary to
their "ethos" to employ anyone who wasn't a white man to do anything, even to be
an accountant or a gardener!

However, freedom of religion does not mean that "religious communities" should
always be permitted to "act in accordance with their beliefs", as the Pope puts
it. For instance, in the
famous 1990 case Employment Division vs. Smith, the US Supreme Court
ruled that it was quite consistent with freedom of religion for the government
to prohibit the use of the psychoactive drug peyote without allowing any
exemption for its sacramental use in Native American religious practices.
Fundamentally, I believe, the point of freedom of religion is that the law should not
single out any religious beliefs or activities for special
disfavour; it does not exempt religious organizations from being subject
to the same laws as everyone else.

In general, any organization that has the long-term role of
being an employer in the labour market can reasonably be subject to a range of legal requirements.
Since equality of opportunity is such an important government objective, it
seems
reasonable that employers should be required to define every employment position as having a
fairly definite and specific role or function, and that when people apply for these positions,
they should be selected solely on the basis of how well they can reasonably
be expected to fulfil that function.

So, we should ask, What
legitimate kind of definite and specific role
or function could it be that could only be appropriately performed by a person
of a certain specific sex or sexual orientation?

The only relevant answer that I can think of is: a broadly expressive
purpose, the purpose of expressing and communicating a certain set of doctrines
or values or ideals. Certain doctrines or ideals can only be effectively
communicated by someone who represents or embodies those ideals, and embodying those ideals
might require having a certain sex or sexual orientation. In short, I suggest, religious organizations should
be allowed precisely the same sorts of exemptions from employment
non-discrimination laws as "expressive associations."

E.g. a feminist organization devoted to promoting the belief that women should
have the leading role in the fight against sexism may, I believe, favour women in
appointing the leaders of the organization (though perhaps not in employing its
cooks and cleaners). If the doctrines of Roman Church include the idea that
homosexual behaviour is contrary to "natural law", and that in consequence
having a propensity towards such behaviour is an "intrinsic disorder", then
perhaps they may permissibly discriminate against gay people in appointing
people to promote, express, or communicate these doctrines (whether as priests
or deacons or Sunday-school teachers or the like).

However, this seems more or less what the UK government is focusing on with
its emphasis on positions that "mainly" involve "promoting and explaining the doctrine of
the religion". Perhaps the wording is not ideal. Perhaps the formulation should
allow for a larger understanding of a position's "expressive" or "communicative" or
"representative" role (as well as recognizing that a post may crucially involve a certain role even if it is not the role that takes up most of the postholder's time). But if the Roman Church asserts that "parish secretaries" and "residential caretakers" have this
sort of role, that assertion should not be automatically exempt from
judicial review. (Otherwise, our imaginary Church of White-Supremacist
Misogynists could just declare that every one of its employees, including its
accountants and cleaners, had a "representative" role, and religious
organizations would have carte blanche to engage in any form of
employment discrimination whatsoever.)

Some Roman Catholics appear to believe that the Equality Bill would force the
Church to ordain non-celibate gay priests. My legal friends assure me that "in no jurisdiction where there is similar legislation have the courts required a church to employ gay priests, deacons, religious teachers….;
nor is it likely that the English courts would do this." So I conclude that the
Pope is quite wrong to call for "missionary zeal" against the Equality Bill.

9 Replies to “Religion and Employment Discrimination

  1. Hi Ralph,
    I appreciate your post and would like to ask for some clarifications. Your suggestion to use the idea of an “expressive purpose” or a “representative role” is a way to be sensitive the arguments raised by the English Bishops. But it might concede too much.
    According to the UK anti-discrimination Bill, being involved in “promoting or explaining the doctrine of the religion” counts as a reason for taking into account sex or marital status or sexual orientation. There are some examples of how it might work. In some countries (e.g. Italy), the Catholic Schools and especially the Catholic University refuse to hire someone who is the re-married condition. This is considered a good reason whether one is a teacher or Moral Philosophy or Quantum Mechanics or Greek Literature. And, I suspect, also for the role of janitor or book-seller or front-office secretary. Now, the Bill would give the opportunity of distinguishing between the role of janitor and secretary on the one side, and that of Professor of Moral Philosophy on the other. And would also offer some argument to those who would object against considering the teaching of Physics as being involved in “promoting or explaining the doctrine” (but what about teaching Evolutionary Biology? Well, a Catholic University would probably not offer such a teaching…). Yet, the idea seems quite clear. Being a janitor should not count as promoting the doctrine, as well as being a parish secretary. And, in my opinion, the same should be said for the teaching of Physics or Mathematics. But the language of “expression” and “representation” seems to me more open to abuse by religious employers: as you point out, almost any role might be described as “representative” of a religion, and it would be very hard to find a basis to object even to the Church of the White-Supremacist Mysoginist that you imagine. The point, I think, is that the distinction we need must be attached to a specific function (promoting and explaining) and not to a general “identitary” concept (expression or representation). The liberal States protect citizens against those kinds of discrimination which would impede an otherwise acceptable identity; a job is an open position in this respect, and the right causes for discrimination should depend on the relation between the nature of the job and the religious doctrine. If the role is incompatible with a certain kind of identity, this should depend on the kind of practice it is, not on its “representativity”. This idea, I suspect, would put us on a rather slippery slope.

  2. Ralph,
    This seems to me like just the right place to draw the line between freedom of religion and equality of opportunity (or, more generally, between f of r and the need for a society to enforce its laws impartially). I’m curious about the public’s reaction to the Bill. Do have a sense of how widely supported it is or the effect of the pope’s remarks on public opinion?
    Jan

  3. Roberto —
    What you say is very interesting. I don’t have a very firm view about how exactly to draw the line; my view is just that there should be a line of this general kind.
    We also have to remember that not all moral wrongs should be legal wrongs: not every activity that is morally wrong should be unlawful. E.g., it might be that the right thing to say about places like Calvin College in the USA, where even the position of being a Professor of Physics is only open to Christians (and not to atheists or Jews etc.), is that this sort of discrimination is morally wrong, and should be denounced and rejected by all right-thinking people, but it should not actually be unlawful.
    Jan —
    My impression is that the public’s reaction to the Equality Bill has been pretty tepid, but this is largely because it’s associated with some fairly unpopular Labour politicians. Some conservative and religious commentators have criticized the Bill, but before the Pope’s interventions, it hadn’t garnered a lot of attention.
    Incidentally, a number of commentators in the British press in the last couple of days have claimed that the Pope wasn’t talking about the Equality Bill, but about same-sex adoptions. I find this hard to believe, because the Pope explicitly criticized the UK’s laws about “equality of opportunity”, and it would reflect a radical misunderstanding of the issues about same-sex adoption to think that they are fundamentally issues about equality of opportunity.
    It seems to me that everyone agrees that the paramount concern in adoption legislation is the welfare of children. No one in their right mind would ever say that permitting adoption by same-sex couples would be worse for children, but should be permitted anyway for the sake of equality of opportunity. Similarly, the Roman Church would surely never say: “Even if it is worse for children for Catholic adoption agencies to have absolute ban on adoption by same-sex couples, Catholic adoption agencies should be allowed to keep this absolute ban anyway, for the sake of freedom of religion.”
    So, this disagreement between the Roman Church and the British government is not about equality of opportunity or freedom of religion: it is about what is in the interests of children. The Roman Church thinks that it is in the interests of children to have a blanket ban on children ever being adopted by same-sex couples; the British government disagrees, and thinks that it is sometimes in the best interests of children to be adopted by same-sex couples.
    Clearly, few government objectives are as important as the welfare of children. So the government surely must require that all adoption agencies should have policies that are in the best interest of children. In making judgments about the interests of children, the government has to reach its decisions by means of the democratic process, properly informed by expert opinion and advice.
    In this case, the democratic process led to a decision about what is in the interests of children that the Roman Church is unhappy about. It is unfortunate that there are disagreements about such matters, but it also seems inevitable in a pluralistic society….

  4. I agree; equality of opportunity would be a bizarre way of justifying the legalization of adoption by same-sex couples. I wonder if the press meant to suggestion that the Pope’s real, unstated, concern was with same sex adoption. Or maybe the press finds the prospect of same-sex couples adopting a more exciting issue that EO.

  5. Am I getting this right? Adoption by same-sex couples is currently legal in the UK, but adoption agencies with religious affiliations are currently able to ignore the law with impunity. The Equality Bill would close that loophole.

  6. Janice —
    Sorry, no, my point was precisely that the Equality Bill has no connection with the issue about adoption by same-sex couples!
    Adoption by same-sex couples is legal in the UK. Moreover, legislation was passed a couple of years ago requiring all adoption agencies in the UK to adhere to certain guidelines (which are designed to safeguard the interests of children). Among other things, adoption agencies were required not to have a blanket ban on adoption by same-sex couples. Catholic adoption agencies were very unhappy about this.
    Now, admittedly, the Pope’s comments are somewhat unclear. But his central claims was that the UK government’s concern for “equality of opportunity” has led to “unjust restrictions” on “freedom of religion”. I interpreted this as targeting the Equality Bill, which clearly is about equality of opportunity.
    This is why I was really surprised to read a number of commentators in the press claiming that the Pope was really talking about adoption by same-sex couples, not the Equality Bill…

  7. “We also have to remember that not all moral wrongs should be legal wrongs: not every activity that is morally wrong should be unlawful. E.g., it might be that the right thing to say about places like Calvin College in the USA, where even the position of being a Professor of Physics is only open to Christians (and not to atheists or Jews etc.), is that this sort of discrimination is morally wrong, and should be denounced and rejected by all right-thinking people, but it should not actually be unlawful.”
    Why is it a moral wrong for a religious institution to want to hire people who share their faith?
    If it’s permissible for one to seek out sexual partners consistent with one’s orientation and rejecting sexual partners not consistent with one’s orientation, why is it wrong for Calvin College to want to seek out academic partners consistent with its orientation?
    And what would be the grounds for this moral condemnation? It can’t be the religious liberty of non-Calvinists, since in order to justify their liberty you need to condemn the Calvinists’ liberty to establish their religious academic community. Moreover, if there is no right to religious community establishment, then religious liberty is a fiction, since, at least in the Christian tradition, there is no Christianity without a Church. You can’t very well tell people they are free to form religious communities but it is immoral to act as if their theological beliefs are in fact true. It’s as if religion in your head and nowhere else is the be-all and end-all of religious freedom. If that’s what you want, you better call the Politburo circa 1958 and give them their ideas back.

  8. You can’t very well tell people they are free to form religious communities but it is immoral to act as if their theological beliefs are in fact true.
    Why can’t you?
    It’s true of many religions that sometimes acting as if their theological beliefs are true is immoral. That doesn’t mean all such religions should be told that they are not free to form religious communities.
    The snotty comment about the Politburo makes me wonder if I should be taking you seriously, but I’m giving it a try.

  9. Thomas,
    You write:
    If it’s permissible for one to seek out sexual partners consistent with one’s orientation and rejecting sexual partners not consistent with one’s orientation, why is it wrong for Calvin College to want to seek out academic partners consistent with its orientation?
    This seems to suggest that whatever is an acceptable rationale in private/personal contexts for being unwilling to engage in some kinds of activity with certain kinds of people (such as date them) should also be thought to be an acceptable rationale for being unwilling to hire them. But this seems as though it would have the upshot that we may refuse to hire people because they are ugly or of a race we are not fond of or whatever other idiosyncratic reason we may have for not being willing to date some sorts of people. This would seem to give everyone, and not just religious groups, the right to hire and fire (and other such public sphere actions) people for an amazingly broad range of reasons. I wonder if you see your argument as having that consequence, and if so if you continue to endorse that argument.

Comments are closed.