The Right to Discriminate

The Age September 30: Illustration by Dyson 'The right to discriminate'

The Age September 30: Illustration by Dyson 'The right to discriminate'

The Age continues to portray the recent success of the campaign for Religious Freedom in Victoria negatively as “the right to discriminate”. The cartoon above and the ratio of letters (Three to One against) are examples of this.

But discrimination cannot in itself be declared illegal. All employers have the right to discriminate, and in fact the entire employement process is, in essence, a process of discrimination. Employers discriminate on all manner of issues to determine the best person for the job. What employers do not have is the right to discriminate unjustly. What is at issue between the religious communities and popular opinion is what constitutes “unjust” discrimination. It is not, for instance, deemed unjust for political parties to discriminate on the basis of political preference when hiring employees for certain positions within the party. And I believe there has even been some argument about the legality of those wishing to hire table-top dancers as to whether they could discrimnate on the basis of the sex of the applicant.

With regard to the current issue, there are several issues at stake:

1) Is the person to be hired appropriate for the position?
2) How do we balance between the rights of the individual and the rights of communities and associations to conduct their affairs according to their communal ethos?
3) How far should the State go in legally determining the ethos of communities and associations?

It is not, perhaps, surprising that some religious communities will answer these questions in different ways. Some communities, for instance, the one from which Bishop John McIntyre speaks , may have fewer problems with the prevailing mores in our society than others. They may have different interpretations of what is “appropriate” or “unjust” discrimination. But they cannot claim that they do not employ to some degree the “right to discriminate”. I have heard that there are Christian communities in the world which will, for instance, when screening ordination candidates, discriminate against those who are opposed to the ordination of women as priests or bishops. Bishop McIntyre’s community may be a case in point. I would regard that as unjust. Bishop McIntyre may not.

It should also be pointed out that it is not inherently unjust to discriminate according to the appropriateness of an individual’s mores or personal ethos for various occupations. It would be surprising, for instance, if a person who was a conscientious objector to immunisation would be hired to run the swine flu vaccine rollout. Nor would the RSPCA be likely to employ an officer whose personal hobbies inlcuded blood sports. This is not a question of the employer passing judgement upon the moral life and decisions of the prospective employee – it is a question of whether the employee’s moral outlook is appropriate to the job for which they are being hired.

The point is that the right to discriminate exists. The point of disagreement is simply about what is just and appropriate discrimination and what is unjust and inappropriate.

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9 Comments

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9 responses to “The Right to Discriminate

  1. Say it loud, say it clear: “discrimination is a good thing.”

  2. Tom

    Well, discrimination in this sense just means choice. If we can’t discriminate we can’t choose.

    This means we can’t even choose in favour of these people who think they’re being discriminated against. That would in itself be discriminatory.

    Instead, if we think that choice should be ‘good’ as opposed to ‘non-discriminatory’ then that’s a whole different kettle of fish. That means we need, as Schutz pointed out, the virtues.

    But the people who wrote those letters… honestly… just… yeah…

    that’s all i got.

  3. Kyle

    I can’t help but feel some confusion when reading some of the letters to the Age. As usual whenever religion is topical, someone writes in with a diatribe about people deluded about invisible friends and about the need for ‘freedom from religion’. I don’t see how these people can plausibly insist on the right to work for a religious organisation and at the same time characterise religious people as deluded and want to exclude religion from the public square. This just seems utterly bizarre. As others have rightly said, it would be just as bizarre if an abortion lobby group was required to consider job applications from catholic priests.

    I think there is a much better counter-argument about whether religious organisations should be entitled to discriminate for every job. What about non-RE teachers at Catholic schools or nurses in Catholic hospitals who do not have any visible religious role in their job? Surely religious organisations cannot discriminate for jobs like that? As for that, I think that every employee of a religious organisation, no matter what their job, still contributes to the ethos of that organisation. I know from my experiences at a Catholic highschool that even the science teacher can affect the religiosity of their students. I remember one of my teachers encouraged the use of contraception. So it is obviously important for Catholics to be able to vet teachers, even if they have no religious role, who could affect the religious formation of their students.

    • Tom

      Kyle is correct, in schools there are no positions that have ‘no visibly religious role’. I can’t speak for hospitals, never having worked/spent any significant time in one, although I would imagine the same categories apply there.

      The question of Catholics teaching in Catholic schools is not a question purely of content. It’s a question of a pervasive attitude (that Kyle called ‘ethos’), towards the Church, towards Bishops and Priests, towards the Pope and towards the Truth.

      If someone is consciously pro-abortion, then (and i’m sorry but it’s just the case) they have no place in teaching young Catholics. The authority they have, and the fact that an attitude like pro-abortion necessarily entails a disrespect for the Pope that young Catholics should not have, means that will they or nil they, they teach something they ought not to teach.

      Imagine if, in an English class, discussing puberty (which for some reason, educational institutions imagine English teachers qualified to discuss) young children ask deeper questions, rather than just the superficial and obvious ones. No institution can bind the conscience of any woman or man; if someone is genuinely pro-abortion, and really holds that this is true, how are they going to answer a question about teenage pregnancy?

      Even if they try to ‘toe the line’ so to speak, it will reflect a poor understanding of the position of the Church. It may be possible that someone who does not accept what the Church teaches, understands it well. This is far from the norm; most people do not live in the Church because they think it is something radically other than what it really is. They consider it oppressive, imperial, misogynistic, etc. etc. The fact that they’re wrong means nothing to them; that’s their ‘opinion’.

      We live in an age that considers facts and values to be two entirely different things. Setting aside the philosophical antecedents to this ludicrous position, what it means is that most people think that the Church’s teaching on abortion, or on sexuality, or on any variety of things is ‘opinion’. This is poison of the worst form. No Catholic should be taught that the Church teaches ‘opinions’ rather than ‘facts’.

      The reason is that the Church teaches neither opinions OR facts; it teaches the Truth. If someone does not hold to the existence of Truth (as so many, many post-modernists do not), then they have no position teaching young Catholics. Their ideas are like poison in a well. Maybe diluted enough to not have an appreciable impact immediately, but over time, the seepage and build up lead to a poisoning of young Catholics.

      Lest someone consider that I prefer dogma to discourse (although this is not a terrible preference in itself), we should remember we are not dealing with Adult, Mature and Capable minds. Rational discourse is NOT the norm for children; ideology is. From a very young age, ‘because my father says so’ is a far more convincing argument for a child than any debate. It is a sign of moral maturity that anyone may be convinced by rational argument, it is not something humans are born with. And it certainly is not fostered in children by convincing them on one hand that Truth exists, and on the other that it does not.

      If a similar authority (i.e.: a teacher) stands against Truth, children don’t receive an intermingling of ideas, and true rational discourse. They receive a counter-catechesis; at Home being taught that life is precious and abortion is wrong, at school being taught that freedom is precious and murder is acceptable. These ideas are NOT compatible; one cannot hold these together except with a tremendous effort of Orwellian double-speak.

      What it comes down to, is whether or not Catholic institutions are free to be Catholic. It is a question of true religious freedom. If our society is to retain the hallmarks of a free society, which are freedom of thinking, association, and religion; then the only way someone can counter the freedom of the Church to teach what She teaches is to show, in public reasoned debate (media centered vilification does not count, sorry) that what She teaches is morally evil and wrong.

      For that, they have to first acknowledge the existence of morality.

      In tennis, I think they say ‘game, set, and match’.

      Freedom is not just a rhetorical device. If Australia is serious about being a ‘free democracy’ then the academics of our age better wake up and start thinking seriously, not just in an empty and rhetorical fashion about the meaning of freedom. Because no-matter how you cast it, freedom does NOT (and cannot) mean unlimited freedom. Much as I may wish, I cannot make a knife in my belly good for me. I am constrained, not by an institution, or an idea, but by reality. My nature as an individual substance, of a rational (rational includes animal and vegetable – the Aristotelian ‘psychic hierarchy’) nature means that some things are good, and some are bad.

      If someone can show, reasonably, how killing an unborn child is good for that child, they have either worked a miracle, or have cast the blackest of magical spells; destroying the patterns of nature. And since ultimately a miracle must co-operate with nature, they certainly haven’t performed a miracle. It turns out black magic does still exist; it’s called sophistry. Discrimination, and anti-discrimination laws are no longer being used as defenses to safeguard freedom; they are being used as a crowbar to tear apart the freedom that citizens must have to comprehend reality as intelligible.

  4. Paul

    I don’t know if you have been following the debate about non-religious ethics courses in NSW state schools as an alternative to scripture classes.

    I already do a Catholic scripture class, and if the ethics course came to pass, I am sorely tempted to volunteer to give one of these courses. I would follow any syllabus they prepare (unless there is something really objectionable in it), so why couldn’t I give both scripture and non-scripture classes? I don’t know whether it will really happen, but it is tempting.

    However, I doubt that the ethics courses will get off the ground, despite all the media stories about it. The course is being promoted by the St James Ethics Centre (which has nothing to do with St James’ parish now, I don’t know why they keep the name):
    http://www.ethics.org.au/about-us/ethics-services/ethics-projects/ethics-in-education/index.html

    The really curious thing is that they say they have been trying to get the course going since 2002, and yet still don’t have a syllabus. Their submission to the NSW Minister for Education says:

    “Under the auspices of St James Ethics Centre, Philip Cam, Associate Professor, School of
    History and Philosophy at the University of New South Wales would lead curriculum
    development for the proposed pilot.”

    and I have not seen or heard of a syllabus. My guess is that they are afraid that as soon as they make one, they will get bogged down in arguments with parents of potential students, and between proponents of the course.

    Also, if I were a teacher in a public school, I would be offended by their claim that schools don’t teach ethics or critical thinking during the normal school curriculum.

    I believe the Victorian Humanist Society has been trying to introduce a similar course in Melbourne. My prediction is that if there was ever approval for a course like this, there would be plenty of volunteer teachers for the first year, and then the supply of volunteers would dry up.

  5. Peregrinus

    “The point is that the right to discriminate exists. The point of disagreement is simply about what is just and appropriate discrimination and what is unjust and inappropriate.”

    I think this is the key to the whole thing. This is often obscured because we have a tendency to use “discrimination” as a shorthand for “arbitrary discrimination” or “invidious discrimination” or “unjust discrimination” or something similar.

    And this usage, of course, distracts attention from the key question – exactly what is it that makes this discrimination arbitrary, unjust, invidious, etc, and that discrimination acceptable?

    In the employment context, we generally say that discrimination is unacceptable if it relates to a quality which is not connected with the job to be performed. So I can’t require you to be male if I’m employing you to write advertising copy, but it’s reasonable to require you to be male if I’m employing you to take the title role in my upcoming production of Henry V.

    But this, in turn, requires us to think very carefully about exactly what the job is. Schools, I think, are a special case. Teachers are employed not simply to impart information, but to create, sustain and lead communities which instil values and an ethos. (This is true for all schools, not just for religious schools). So, when we’re hiring a maths teacher, we can reasonably ask more than “how good is his maths?”

    But we do need to think very carefully about this. Among the values that a school has to address are tolerance, respect for individuals and for individual freedom, and how we deal with people that we don’t agree with. And part of the ethos that a school has to impart deals with how we address differences within our own communities. The Catholic church is not, and never has been, a community in which every member uncritically accepts everything that the popes and the bishops say. There is no basis for creating a school community which mirrors such a fictional church. (Nor is it wise, since it will leave students unprepared to address their own difficulties with the church, and unprepared to deal with the reality of the church, when they leave school.) So “we only employ 100% faithful Catholics in all positions” is not really a defensible position.

    Where do we draw the line? My instinct is that the state should largely butt out, and leave churches (and other communities that sponsor schools) to nut this out for themselves. They have to decide which qualities really are relevant to the role that school staff have to fill. But I wouldn’t assert that as an absolute principle, because the right of individuals to be fairly treated in an area where they are vulnerable to oppression – employment – is at stake. If, hypothetically, a Catholic school were to refuse to employ a PE teacher because he was a faithful Presbyterian, and so rejected substantial elements of Catholic belief and understanding, I’d have a real problem with that, and I’d find it very hard to say that the state had no business to intervene.

    • Yes, PE, I have several non-Catholic friends who are very faithful Christians who work in Catholic schools. It should be no suprise that often they are closer to the ethos of the Catholic School than some of the “Catholic” members of staff.