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Taking diversity seriously: Religious associations and work-related discrimination 107
was deprived of alternative work opportunities. His unemployment
following the termination of his contract by the church was not the result
of there being no other work opportunities available to him, but was
instead due to the publicity that he ‘allowed his case to receive’. Had the
church stipulated a Christian lifestyle requirement from the beginning
then, assuming alternative work opportunities would have been available
to him, the burden on Strydom would not have been ‘enormous’. As
Vickers notes, if an individual ‘is unable to take up a job because she
cannot meet its requirements, but remains free to take other jobs, there will
only be a minor infringement of her interests, as she remains free to take
up other work’. 141 Liberals may well find the church's discriminatory
policy reprehensible, as I do, but a liberal pluralist politics and
jurisprudence should acknowledge the substantial burden placed on a faith
school by preventing it from discriminating in accordance with the tenets
of its faith.
Nevertheless, although committed to the view that such work-related
discrimination should be legally permitted, I think it legitimate to oppose
such discrimination by other means. What the Bob Jones decision of the US
Supreme Court shows is that associations conducting their affairs in a
manner contrary to core public purposes can legitimately be burdened.
That is, the state is entitled to exert moral and financial pressure on a
church to rethink its discriminatory policy by rescinding all forms of
otherwise available public encouragement and favour, including a tax
exempt status (if applicable) and all forms of financial subvention.
7 Conclusion
As McLachlin J put it in Trinity Western University v College of Teachers, ‘[t]he
diversity of Canadian society is partly reflected in the multiple religious
organisations that mark the societal landscape and this diversity of views
should be respected’. 142 In Strydom, the Equality Court likewise
acknowledges the need to respect diversity in South Africa, quoting with
approval Ngcobo J's dissenting judgment in Prince v President of the Law
Society of the Cape of Good Hope: 143
The right to religious freedom is especially important for our
constitutional democracy. Our society is diverse. It is comprised of men
and women of different cultural, social, religious and linguistic
backgrounds. Our constitution recognises this diversity. The protection of
diversity is the hallmark of a free and open society. 144
141 Vickers (n 122 above) 60.
142 [2001] SCR 772 para 33.
143
Prince (n 1 above).
144 Strydom (n 8 above) para 9.