Monday, 8 February 2010

Should the church be allowed to discriminate in employment?

There have been a bunch of threads on CiF Belief on the common subject of Does faith trump equality? The question basically is whether (and if so, to what extent) should churches be exempted from legislation banning discrimination in employment.

Jonathan Bartley argues broadly no.

Michael Scott-Joynt, Joel Edwards and Jonathan Chaplin all argue for exemptions, but in their respective articles have been notably unclear as to what examptions they want: in essence what kinds of people they want to be able to discriminate against, and what kinds of jobs that discrimination should be able to apply to. So I have a challenge to them and to anybody else to clarify this.

Let us consider the following categories of people.

1. Women
2. Celibate homosexual men
3. Celibate homosexual women
4. Homosexual men in a civil partnership or similar stable relationship
5. Homosexual women in a civil partnership or similar stable relationship.
7. Unmarried heterosexual men or women living together in a stable relationship
8. Hindus
9. Muslims
10. Atheists
11. Catholics

Now let us consider the following paid jobs within the C of E.

a. Ordained clergy
b. Teacher of religious education in a C of E secondary school
c. Teacher of science in a C of E secondary school
d. Junior or infant school teacher (all subjects) within a C of E school
e. School nurse
f. School caretaker
g. Administrative assistant
h. Press officer
i. Cleaner
j. Computer technician

So, please indicate for which combinations of person and job category should it be legally justifiable for the church to discriminate, where another employer is not so permitted?

If we can have a discussion that gets away from generalities and into describing specific categories, then there is a much better chance that in due course legislation can be written that is clearer.


  1. Jonathan Chaplin9 February 2010 at 14:42

    Missed the Guardian, so here is a response. The key issue is: who should get to decide such things? Shortly I'll offer my personal judgments. So could you, or JonathanB. But why should those personal views have any standing in an independent organisation like the CofE?

    What should be the legal basis for deciding these things? Currently it's legal to 'discriminate' in hiring if a genuine occupational requirement is at stake. Do you accept the propriety of the current legal position, or do you want the state to be legally able to take away any organisation's right to decide what counts as in conformity with its mission?

    Now suppose the organisation concerned was committed to running its workplace like a close community, with everyone fully sharing the organisations's stance and ethos and fully participating in its internal life, eg by attending staff meetings, joining daily prayers, etc. Here cleaners and secretaries would be viewed as full members of the work community and not just functionaries. I'm assuming you don't want the state to ban such a communal ethos inside workplaces (religious or not). If so, then it would indeed be a GOR that every staff member at any level shared the core beliefs and ethos of the orgnisation. Even Ekklesia expects that its staff shares its distinctive values.

    Now CofE churches differ widely in this respect. I've known some which aspire to that ideal, and others who operate a much more conventional 'business model' of the workplace, where it doesn't matter at all whether cleaners etc share the core beliefs and ethos, because they are seen as mere functionaries. I'd like the CofE and any religous organisation to have the legal freedom to operate in this way if they wish, and to the degree that they wish. So the defalt (prima facie) legal position should be that candidates for any of the roles you list (a - j) can fall within the GOR provision.

    As to which of the categories of people (1-11) you list should be subjected to GOR for any of the roles, you'll see it's impossible to give a comprehensive answer in the abstract. For the organisation itself should retain the prima facie right to decide which of those characteristics are 'genuine' requirements for the position. What is a GOR for one type of organisation won't be for another.

    In the light of that, some illustrative personal judgments. Well, I've already argued that for ALL of the jobs you list, a church may make it a GOR that they share the beliefs and ethics of the employing body. It doesn't have to, but it should have the right to. So a Christian organisation I used to work for employed a Buddhist as computer technician. No problem in that case. But he should not have been able to sue the organisation if he had been turned down because he was a Buddhist.

    As for your first set of categories:

    - 1, 2,3: open to all and any job.
    - 8, 9, 10: in general not open to any job (except, for example, where a church partnered in hiring an interfaith officer, who might well be a Buddhist, Hindu, Muslim etc)
    - 11: any position except (for obvious reasons) ordained clergy
    - 4,5,7: not a (ordained clergy); in general not b, c, d, h because they could not reliably provide role models to students in accordance with current Anglican teaching on sexual ethics (so if the latter officially changes, then the legal position would also change); the rest - that would depend on various circumstances that cannot be detailed in advance.

    Specific enough?

  2. Jonathan Chaplin

    Before I respond on the detailed categories, I would like to ask a couple of general questions that are raised by your comment.

    1. Do you believe that any organisation should be permitted to discriminate in ways such as you describe, or is this a right you wish to reserve to the churches and other religions?

    2. Given that the C of E is established, has bishops in the House of Lords and its schools are in receipt of taxpayers' money, can you justify your claim that the C of E is an "independent organisation" about whose affairs the personal views of others should have no influence?

  3. Jonathan Chaplin9 February 2010 at 18:22

    1. I believe any organisation legally can - and should be able to - appeal to the GOR provision, but what actually COUNTS as 'genuine' depends on the nature of the organisation (and the occupation). So no, I certainly don't want to reserve the right to invoke GOR to religious organisations. But what discretion that permits depends on the stated purpose of the organisation. In the case of a rape crisis centre, I'd have thought that the purpose of caring for traumatised women who have just been subjected to male violence was sufficient to restrict counselling positions to women. But it would not justify any other restrictions, eg according to religion (unless it was a faith-based centre), ethnicity, sexual orientation, etc.

    2. I would make a clear distinction between the first two of these and the third. The Established status of the CofE does not change the fact that it is substantively independent in the matters relevant to our discussion. It is essentially self-governing, even though some remainders of state control still linger on (and I'd favour removing those). The presence of Bishops in the House of Lords also does not affect the independence question. As it happens, I agree that their presence is an unjustified privilege which should be ended, probably by appointing a representative range of religious leaders rather than by removing them all entirely.

    The issue of church schools is different. Yes, they receive public money, but again I don't think this changes things in any significant way. Mere receipt of public money does not, IMHO, though not in the dominant political consensus, entitle the government to control everything in an independently governed organisation. Eg in arts or university funding, govt makes large grants but respects the 'arms-length' approach as to how that money is spent. At least it should do and I worry about its increasing tendency to encroach on artistic and academic freedom (cf Peter Mandelson's recent noises about making universities even more subject to economic considerations. Also, public money does not entitle my or your personal views to carry any special weight, just as they should not carry any such weight in how arts bodies or universities spend public money. We can of course express out views via the democratic process, or via internal governance structures if we have access to them (eg if I am university lecturer or governor).

  4. Let's look at some individual categories. Could you explain in what way Christianity is a GOR for a cleaner, such that an atheist or a Hindu should be barred from the job? Could you explain in what way a Christian cleaner cleans things more efficiently than an atheist cleaner, or that a married cleaner cleans more efficiently than a gay cleaner?

    Similarly, in what way does a person's atheism interfere with his or her ability to get your computer working right?

    With regard to teachers, in what way does atheism or Islam affect a teacher's ability to teach science? For that matter, in what way does a teacher's civil partnership status affect his or her ability to teach science?

    And to what extent are sexual matters on the curriculum of a primary school at all? Quite frankly the children of a primary school have no business knowing anything about the private lives of the teachers at all. That being the case, I would be curious as to what the GOR is in that case.

    Now, it seems to me that a "GOR" is something which is directly concerned with the ability of a person to do the job at hand. You seem to be extending this to include a generalised compatibility with the ethos of the employer, unrelated to the ability to carry out the tasks required by the job.

    As I understand it, this is specifically barred by the equality legislation from being grounds for refusing employment. Unless I have grossly misunderstood you, it seems to me that you want to be able to discriminate agains people on grounds entirely unrelated to their ability to to the work involved.

  5. Married you say that gays can not get married?

  6. Well, of course I don't think these grounds are 'entirely unrelated to their ability to do the work involved'. If I thought that, that would be an example of illegitimate discrimination. So yes, I am defining (I'm not sure whether I'm 'extending') the intent of GOR to include a person's compatibility with the organisation's ethos - that is, where it HAS a declared ethos (if not, then it can't be an occupational requirement). But this is not unrelated to ability to do the job, since as I explained in my first post here, some (religious or other) organisations seek to maintain a strong sense of solidarity with that ethos among all staff, and that seems to me prima facie entirely legitimate. So, for example, while a science teacher in a church school may teach broadly the same subject matter whatever their faith, their contribution to the larger goals of the school (whether Catholic, Jewish, Islamic, or indeed Hindu), depends on their sharing that ethos. You seem to be taking e.g. 'ability to teach science' in a very narrow way, separating each individual classroom experience from the larger operation of the school as a community. But most teachers will tell you that the success of a school depends as much on a strong ethos (it needn't be religious of course) being widely shared among staff as on technical proficiency of teachers in a classroom.

    In principle the same applies to cleaning staff for the reasons I also spelled out earlier. Obviously I'm not saying that Christians clean better than atheists but I am saying that being a FULL member of a school (or other) community, and not just an unimportant functionary (as most cleaners are in most state schools) might involve, for some schools who seek a strong sense of solidarity, a commitment to that ethos. The same principle applies to being gay/straight, etc. And, by the way: suppose a church school held non-traditional views of same-sex relationships, i.e that they were morally and theologically acceptable, and that that was clear in their public statements. Well, they would not be entitled to decline to employ gay/lesbian teachers or other staff. It all depends on what the declared ethos of the school actually is.

    Note that throughout I've used the phrase 'prima facie' right to hire (or not). That means that there should be a presumption that the organisation can invoke GOR in hiring decisions, but those decisions could be tested in law to verify that they are genuine. Some might not be and individuals do need some recourse to protect them against bogus appeals to GOR.

  7. Jonathan Chaplin

    The problem is that you are claiming that "a person's compatibility with the organisation's ethos" is prima facie a GOR.

    I have two responses to that.

    First, this is very un-Christ-like, in that Jesus according the Gospels sought out prostitutes and tax-collectors and others at the margins of society, and you appear to be doing your best to keep them at the margins and away from your nice cosy little group with a common ethos.

    Second, this is quite frankly an attitude best described by a rather unpleasant but apposite word. This is bigotry. This is discrimination against people for reasons unrelated to their ability to carry out the duties of their job.

    There is a new article on CiF concerning the equality bill, Rowan's speech and the equality bill and I have made mention there of your responses here. You may wish to go there and contribute.

  8. It's a pity Jonathan so quickly descends into an all too familiar labelling routine. Exceptions to equality legislation are normal, necessary and welcome as part of a democratic process that recognises fairness, difference, and that you can't impose one-size-fits-all regulations in the context of a diverse society. It acknowledges the reality of fundamental civil liberties such as freedom of association and freeedom to be. It is sometimes referred to as legitimate discrimination because it involves allowing mutual space for difference in peaceful social coexistence. GORs are an essential part of that legal process because they recognise that certain roles involve representing and promoting organisations' beliefs and ethos. It is common sense that they be compatible with that ethos. Each role is therefore evaluated in the light of those criteria. Of course Jesus sought out those on the margins of society - what Jonathan fails to note is that usually an encounter with Jesus meant that peoples'lives were transformed. They didn't go on to represent and promote the church still living their former ways of life. There used to be words to describe such behaviour - like 'hypocrisy' and 'sin'. If Jonathan disagrees with a group's freedom to define itself then he is free to go and set up his own. But don't try to impose your views on a group you happen to take exception to.

  9. Don

    You're welcome to hold a different view, but it would help if you were to make some passing attempt to justify it. We don't for instance accept that communities of paedophiles should be permitted to exist and carry out their favoured kinds of sexual activities.

    So there are limits on what is considered an acceptable range of alternative societies and the special dispensations that are made for them. If you want such dispensations with regard to the law that applies to everybody else, a law designed to protect the weak from the strong, then it is for you to justify that.

    Simply screaming "We're different and the rules shouldn't have to apply to us" doesn't qualify. If you are going to argue that the rules shouldn't apply, you are going to have to explain why and to what extent the rules should not apply. Claiming as a Genuine Occupational Requirement some characteristic which is not relevant to a particular occupation is not the way to go about it.

    I accept that there is a perfectly justifiable GOR with regard to ordained clergy. I also accept that there is a perfectly justifiable GOR with respect to certain senior lay positions that are directly concerned with the promotion of your religion. But to claim that one's religion is a GOR for a church cleaner is either grossly hypocritical and bigoted for a church that claims to be universal, or you're taking the piss.

    When I originally put up the list, I deliberately made the range of jobs extremely wide so as to offer an opportunity for you to make a distinction between jobs that involved the promotion or teaching of religion and those which were not but just happened to be carried out on church property.

    I was expecting some kind of justification along those lines, and would have been prepared to engage in a reasonable debate concerning the justifications offered, in the hope that this would help clarify minds on both sides of the debate as to what was at issue and what forms of words might be used to express it.

    I deliberately included "cleaner" as a job which as far as I can see has no conceivable Genuine Occupational Requirement in terms of the employees religion and sexuality. I was flabbergasted when Jonathan Chaplin chose to claim that the church should have the right to define even a cleaner as having a GOR to be a Christian with the right kind of sexuality.

    But it seems that you are not prepared to be reasonable about this, you simply want carte blanche to discriminate as you see fit within the church, and no secular concepts of justice should be permitted to interfere. I don't see why the secular world should have to accept that.

  10. Jonathan,
    I think I'm being eminently reasonable and am certainly not screaming. Nor do I want carte blanche. But it is easily possible to envisage a situation where a cleaner may also be required to promote the ethos of an organisation. We do actually have multiple roles within the real world of religious organisations. As I said, each case must be evaluated on its particular nature in accordance with the law. If you are going to legislate in areas like this then there are limits to what you can do without becoming coercive. The law therefore needs to be flexible and commonsense, but it also should not be abused. That is why you can't have black and white regulations as you seem to want by producing your list.

  11. Don
    The essential point is that a Genuine Occupational Requirement has to be a requirement that is genuinely related to the occupation.

    In other words, it has to be related to and essential for the tasks involved in the job for which a person is being employed.

    If all your cleaners are in fact ordained clergy and conduct services in the churches they clean, then I would regard that as a bizarre arrangement but one for which there was an arguable case for claiming that this is a circumstance in which the GOR for clergy was applicable.

    But it is not reasonable to say that you want a blanket exemption from equality law because certain of your jobs may have a GOR. It is for you to justify the GOR on a case by case basis.

    The reason I provided that list was in order to see what your justifications were, in other words in what way the GORs related to the jobs.

    So far, you have provided nothing which offers any kind or relation to the tasks or any kind of proportionality.

    Surely you realise the irony of justifying the right to exclude from your employment people who are different through a claim on society of the right to be different yourself.

    Bigotry does not cease to be bigotry when it dresses itself in the language of diversity, and you have given me every reason to think that is what you are going here.

    I was originally quite prepared to support the idea that not only clergy should have an exemption, but also that a significant range of lay jobs whose duties directly involving the promotion and organisation of a religion should also have that exemption.

    The arguments you and Jonathan Chaplin have put forward have caused me to change my view. I am now of the opinion that exemptions should apply solely to ordained clergy and nobody else.

  12. Don

    If you don't want a blanket exemption, then perhaps you could do what Jonathan Chaplin has so far been unable or unwilling to so, and indicate some jobs in the church for which no exemptions is wanted.