Why is religion in anti-discrimination law?

The exemption [from anti-discrimination law for religious schools] stands or falls on whether there is something so unique about religious belief in education that it should over-ride the principles of equal employment opportunity that the community applies to virtually every other workplace. …. Why should some employers be able to discriminate on the grounds of religious belief when the law specifically proscribes this for the general population?

Ken Lovell, 20 July.

To me the issue stands or falls on the conceptual basis for including religion in anti-discrimination law in the first place.

On one view it is because religion is deeply important to many people, and as a community we accept that we all should be allowed to live according to our spiritual-cultural beliefs. Anti-discrimination law means that people don’t have to hide their religion when looking for a job or buying services. This is likely to be especially important for people who display religious symbols or dress in accordance with religious norms.

On another (not mutually exclusive) view, religion has a long history of causing social strife. With some glaring exceptions like Northern Ireland, Western countries have largely dealt with this through the practice of toleration. Anti-discrimination law gives legal force to this practice of just putting up with other religious beliefs, whether we like them or not.

On these justifications, the legal exemptions given to organisations based on religion are not conceptual exemptions. Rather they give effect to the underlying ideas that religion is important and that the chances that religion will cause social strife should be minimised.

Without the exemption, we are saying to religious people that while you can believe whatever you want and we will protect that in secular settings, we will not permit you to create the institutions you believe necessary to practice and promote your religion.

This sounds like a very bad deal with religious believers. They are protected against an inconvenience (most businesses couldn’t care less what religion their employees or customers have, so in the event one does have negative views just find another) at the cost of their unique organisations.

Similarly, it undermines tolerance. As the original Sunday Age article showed, state attacks on religious organisations are bound to cause strife.

To give effect to their conceptual basis, the legal structure of anti-discrimination law should exempt organisations based on its characteristics. So religious organisations can discriminate on the basis of religion, single sex organsations can discriminate on the basis of sex, ethnic organisations can discriminate on the basis of ethnicity, etc.

6 thoughts on “Why is religion in anti-discrimination law?

  1. I’m not sure I completely follow. Does that mean that for-profit organisations should be able to discriminate on the basis of what is likely to be profitable? Such as not hiring 30-something women who are likely to take time off to have and raise children?

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  2. Andrew I think that’s an eminently sensible position although I note that your final paragraph takes it away from religion and turns it into a proposition that can be applied generally.

    To date, EEO laws have arbitrarily identified certain personal characteristics and prohibited discrimination on their account, while allowing discrimination on other grounds that are equally irrational but quite frivolous. For example an employer cannot refuse to employ someone simply because they are Korean but they can refuse because they support Collingwood (some people might not regard that as a frivolous reason for rejection, I know).

    The law would be more sensible – although still not very sensible in absolute terms – if employers were allowed to discriminate on grounds that a reasonable person would agree are linked to the purpose and strategy of the organisation, whether one endorses that purpose or not. In other words if a feminist organisation believes it can achieve its strategic objectives more effectively by employing women only it should be free to do so. It would give legal recognition to the notion of ‘cultural fit’ that is very much in vogue in strategic HRM circles.

    Mind you EEO would still be full of anomalies and irrational outcomes but your proposal would be a distinct improvement on the present situation.

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  3. Ken – I agree, the list is rather arbitrary. Class background is a glaring omission from an egalitarian perspective – a far more important influence on life chances than religion, sex, political beliefs, etc. In practice, I am not sure that employers generally find it that difficult to deal with EEO. Discrimination is hard to prove if your only evidence is that your application was rejected – most applications are rejected so that fact prima facie proves nothing. It is only employers with a genuine need to discriminate – say by specificying gender or religion in a job specification – that are caught.

    Rajat – Desire to make a profit it not a characteristic protected by anti-discrimination law. One of the few…

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  4. Andrew there was a case where Virgin Blue got pinged for age discrimination because it didn’t give jobs to some ex-Ansett flight attendants. Virgin’s argument, which seemed reasonable to me, was they they didn’t suit the brand image but this was rejected by the tribunal which relied partly on statistical probability to find the existence of discrimination. See here.
    I agree most employers find ways to cope but it often involves a degree of subterfuge which they should not have to engage in.

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  5. Ken – Some provisions eg age, disabilty, pregnancy are to my mind in a quite different category as these will often conflict with otherwise reasonable employer requirements.

    I’m with VirginBlue in this case – one reason I prefer them is the more informal approach of the flight attendants, which came out of a youth-oriented hiring policy. Though being on the wrong side of 40 myself I can sympathise with applicants who were being rejected.

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  6. In most cases an organization while not hire people who do not fit the “culture” or subscribe to the ethos. e.g. Investment banks won’t hire people who believe in a 40 hour week. Or a tobacco company won’t hire an anti-smoking advocate, even if they are well qualified marketeer/lawyer/manager.

    The exemptions allowed to some places allow them to be honest and save people who don’t match this sort of non-PC criteria the time of applying.

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