Allowable Discrimination

March 7, 2019

What would you think if I told you we need to be tolerant of reasonable discrimination? Most Americans would react negatively, thinking discrimination is evil, never reasonable. The truth is, we all discriminate, a lot, and it’s okay. In fact, discrimination is necessary to making everyday decisions. Usually, we discriminate by favoring people who share our values or preferences.

We discriminate when we vote, when we pick our friends, choose a church, select a roommate, decide to trust someone, etc. These are all “reasonable discrimination” areas, but how reasonable our discrimination is may depend on the basis of our discrimination. If someone told you they only choose people from their own race for these things you may feel that’s not reasonable. Most Americans would say such racial discrimination is foolish, immoral, bigoted, etc. If we own a business and refuse to serve anyone but our own race it would be illegal. Few people would call that “reasonable discrimination.” We’re much more tolerant of values based discrimination, such as boycotting a company that exploits young children to manufacture products overseas.

I know a couple of brothers who refused to attend their dad’s wedding. They believed he acted immorally when he divorced their mom so they wanted nothing to do with his wedding ceremony to another woman. We could argue about whether that was the best choice or not, but certainly they were within their rights and the bounds of “reasonable discrimination” based on this violation of their personal values. If one of them worked for the county clerk and suddenly stopped approving marriage licenses for anyone who’d been divorced, that might be unreasonable. If he asked a different employee to approve them instead because he hated divorce so fiercely after his experience with his parents, I’d say that would be reasonable discrimination. But if he started sending marriage license applications back with rejection notices before anyone else in the office had a chance to approve them, I’d call that overzealous and unreasonable.

To understand this concept of “reasonable discrimination” better, let’s look at a couple gray areas where Americans disagree, but the controversy isn’t particularly heated: recreational marijuana and vulgar language.

Imagine a college student (let’s call her Kate) looking for a roommate to share rent for her off-campus apartment. She has two candidates who both seem friendly, trustworthy, with compatible personalities. Neither one drinks alcohol or uses illegal drugs, but one uses recreational marijuana. (They’re in a state where this is legal.) Kate believes it could be a problem so she chooses the other student.

This clearly qualifies as reasonable discrimination. Whether the student is correct or not in her assumption that marijuana use could be a problem, she has a right to make this personal choice. The key factors here that make the discrimination reasonable are:

• Picking a roommate is a personal, private choice.

• She’s allowing this person into her life in a close relationship that involves a significant amount of trust, cooperation, and risk.

• The discrimination doesn’t cause undo hardship to the person she’s turning away.

• She must make a choice, and there’s no other distinguishing factor.

• She’s exercising her rights without infringing on anyone else’s rights.

• Recreational marijuana use is a chosen behavior, not a characteristic beyond the person’s control (such as race).

In this example, Kate is also discriminating against all men even though sex is a characteristic beyond our control. She believes unmarried people of the opposite sex should not be roommates. Nearly every society in human history has accepted that choice as reasonable discrimination.

Let’s consider the marijuana user a few years later. She has a job for a company that requires a security clearance for a government contract. As the government conducts its investigation for her security clearance, they discover that she is a recreational marijuana user. The government denies her security clearance claiming that drug users are a security risk due to potential mental impairment. The following points weigh in her favor:

• The government must abide by the highest standards to justify discrimination against anyone.

• The justification is inconsistent because alcohol users are granted clearances.

• Her actions are legal in her state.

 But the government has some points in its favor:

• National security justifies a higher standard of caution in granting clearances.

• Alcohol use is so widespread that it’s not practical to deny security clearances to those who drink unless they have a history of excessive drinking.

• Recreational marijuana use is against federal law.

• Recreational marijuana use is a choice that the individual can stop.

The government has a strong case for “reasonable discrimination” here, but it’s questionable.

Let’s consider another college student looking for a roommate in the apartment he rents. I’ll call him Kade. He’s been interviewing candidates and keeps turning them down because he’s having trouble finding anyone who meets his high standards. One of the problems is that he doesn’t want any vulgar language in the apartment. He doesn’t like being around it and finds that he starts to pick up vulgar expressions when he hears them a lot. I would argue that this young man’s discrimination is okay for many of the same reasons as the example above with a couple additional factors:

• His choice is causing hardship for himself, not others.

• He’s trying to avoid picking up a negative habit in his own life.

Now, imagine this student graduates and starts a successful small business. Being a man of high moral standards, he favors employees with similar values. Some of his employees complain that he refused to promote them after he heard them use vulgar language or tell a crude joke. They feel that they should be promoted for work performance and his discrimination is unreasonable.

On the surface, these disgruntled employees seem to have a solid argument:

• It makes sense that hiring and promotion decisions should be based on work performance, not personal morals.

• Vulgar language is an irrelevant personal choice, unlike something with a direct cost to the business such as stealing.

• In our culture, work discrimination is considered unfair and destructive, requiring a strong justification.

But the business owner has a few things in his favor:

• We try to keep government interference in small business to a minimum, allowing them as much freedom as possible in their business practices.

• Morality is a highly subjective area. Private businesses need to have the freedom to follow what they consider to be best practices.

• Vulgar language could impact his business by offending other employees or customers.

• Personal values and standards of conduct are vital in hiring and promotion decisions.

This case boils down to which individual has priority. Does the employee’s right to work free from discrimination against his values justify government intervention to protect him? Or does the business owner’s right to conduct his business the way he thinks is best prohibit government intervention?

Government intervention is the big question. Everyone has their own opinions on what justifies discrimination. If I describe different scenarios and ask, “Was that discrimination reasonable?” responses will vary depending on which side aligns with your personal values best. That’s okay for personal opinions, but not for the government. We need some kind of standard to determine when the government should step in to protect individuals from discrimination.

To see what this standard might look like, let’s consider another hypothetical moral dilemma. This time I’ll use the highly charged arena of parental rights and the tension between child discipline versus abuse. The conflict is real because so many people have passionate and diverse opinions, but the scenario I’ll use is completely hypothetical. Hopefully that will allow us to analyze the issue of government intervention objectively, but realistically.

You’ve probably heard the old cliché, “Spare the rod, spoil the child.” Many people think this is in the Bible, but it’s not. There are 4 Biblical proverbs that support the idea of using a rod to discipline children (Proverbs 13:24; 22:15; 23:13 and 29:15), but none of them say, “Spare the rod, spoil the child.”

Imagine an enterprising company that designs a special “Rod of Discipline” (RoD) guaranteed to sting, but never bruise or cut. It’s marketed as an effective tool for corporal punishment that no parent can intentionally or accidently injure their child with. Now imagine that this RoD becomes a sensation, gaining many enthusiastic parents advocating how great it is. A few popular child rearing experts praise the devise and encourage parents to use it for its effectiveness in discipline while protecting children from physical harm.

It’s easy to imagine that the devise would quickly garner some detractors, calling it sadistic, abusive, ineffective, etc. Soon people would be lobbying for government action to ban to the RoD.

By this time churches are already taking sides. Some church leaders begin speaking out against it while others defend it. Most conservative pastors join a chorus of voices defending parental rights to use RoDs while promoting corporal punishment as a tool of Biblical parenting. Some liberal denominations condemn use of the RoD, expelling pastors who use it. Moderate denominations try to prevent splits amid heated arguments over whether to encourage its use, remain neutral, ban church leaders who use the RoD, or ban RoD users from formal membership.

Congress is too divided to take any action, but the courts get involved when a small business day care owner fires an employee after learning she uses the RoD at home. The young mother files suit claiming religious discrimination.

Another religious discrimination suit surfaces when a family counselling center starts advising all its customers against using the RoD and refuses service to anyone who continues using it.

Each discrimination I describe above highlights something courts should consider when deciding if the discrimination is reasonable or not. First, consider the people calling for the government to outlaw the RoD completely. For the government to pass a law prohibiting something, they need very clear evidence that it causes significant harm to our national security or well-being. Without strong justification, the government shouldn’t outlaw things people do in the privacy of their own homes or prohibit selling products to sustain a profitable business. In this case they also face the first amendment protection for religion because many RoD users believe they have a Biblical mandate to use it. So here are a few areas to consider for government intervention in a reasonable discrimination case.

• Is there evidence of significant harm to national security or well-being?

• How private/public is it?

• Does the discrimination significantly interfere with individual livelihood?

• Is the discrimination constitutionally prohibited?

• Is the discrimination based on a chosen behavior or a characteristic individuals have no control over?

The church dispute isn’t very controversial as far as government intervention goes. Churches are protected by the first amendment of the constitution. The government doesn’t interfere with their right to discriminate based on morality, virtue, or doctrinal beliefs in who they ordain, grant membership to, or even hire. Most controversy here is internal. When church members disagree on such issues they tend to argue passionately. Religious organizations need to uphold standards of morality and virtue, along with enforcing doctrine, so it shouldn’t surprise or offend people when they discriminate in an area related to morality, even if you disagree on the particular position they take.

The small day care business is different. They don’t have the protections that religious organizations have, so the government can do more to regulate their hiring, firing and promotion practices to protect individuals from discrimination. But generally, the government tries to give small businesses as much freedom as possible. Firing this employee could be considered reasonable discrimination. Under our constitution, democratically elected legislators could be justified in either protecting the individual from discrimination or protecting the business employment decisions with the following considerations.

• Is the behavior related to the work?

• Does the discrimination significantly impair the individual’s abilities to provide for themselves?

If the day care was discriminating against a specific religion, courts may side with the young mother, but since it appears the day care is discriminating against a child discipline approach which is related to their business, courts may side with the business. On the other hand, if her discipline approach is a personal matter with her children only, and she follows all guidelines of the day care while at work, the courts may rule that they are overstepping their authority into private matters protected by the constitution. This hypothetical case illustrates the confusing grey area where courts need better guidelines to determine reasonable versus unconstitutional discrimination.

The last case involving a counselling center refusing to serve RoD users isn’t quite so grey, but it does have some uncertainty. Generally, if businesses refuse to serve a group of people, our constitution allows the government to protect the people from unreasonable discrimination. In this case the counseling center could argue that they consider the RoD to be abusive and their counselling is ineffective in situations where parents use it. Customers would likely argue that they still benefit from some services, and they should be given the opportunity to use them. It seems appropriate for the counselors to recommend not using the RoD if they feel it causes psychological harm, but if customers refuse their advice, that doesn’t justify cutting off all service. There are many considerations that come into play with a business refusing service.

• Will members of the business feel they are substantially participating in or condoning something that violates their beliefs by providing this service?

• If a customer is denied service at a business, can they easily find the service somewhere else?

• Did employees of the business communicate respectfully, or did they intentionally shame or harass customers while denying service?

• Did the business assist denied customers in finding the service they need elsewhere?

• Is the denial based on criteria specifically protected from discrimination in the constitution?

• Is this denial of service necessary for the business to function profitably?

It should be evident if you’ve read this far that many forms of discrimination could be reasonable, even if you personally disagree with them. Things that make discrimination unreasonable include:

• Harassment

• Can’t find a job

• Can’t buy goods or services

• Can’t find a place to live

• Can’t practice your religion

The government can’t step in to protect every group of people who think they are being discriminated against. There needs to be evidence of significant harassment or oppression. When that evidence exists, government intervention needs to be as limited as possible to avoid suppressing the rights of others. The focus of intervention needs to target the following types of organizations listed in priority order:

• Government agencies

• Large business

• Small businesses

• Non-profit organizations

• Religious organizations—extreme cases only

There needs to be a burden of proof when people go to the courts. They need to show evidence of significant harassment or oppression, not just that discrimination occurred. (Unless protection against discrimination is specified in the constitution such as with religion and race.)

For protection against unreasonable discrimination in areas where people have a choice in their behavior, the courts need guidelines to make determinations of reasonable and unreasonable discrimination sensible and consistent. I believe the considerations below would form a good basis for assessing reasonable discrimination.

Considerations for Allowable Discrimination