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Taking diversity seriously: Religious associations and work-related discrimination 109
intermediate between these two poles: A teacher whose duties extend only
to non-religious subjects occupies one such a position. It may be difficult,
admittedly, to judge when such intermediate positions are sufficiently
close to matters of faith to mandate a constitutional exemption, but such a
determination is necessary in each case.
Where legislation prohibiting discrimination subjects a religious
institution to a substantial burden (to be determined in the circumstances
of each case) by interfering with religious convictions and purposes, this
provides a strong reason to permit such organisations to discriminate. But
this reason must be balanced against whatever burden is placed on the
employee or contract worker (or potential employee or contract worker) as
a victim of discrimination. The extent of the burden will often depend on
whether alternative work opportunities are available. If the burden placed
on the individual is insubstantial and that placed on the religious group is
severe, the liberal commitment to non-discrimination may have to yield.