Wednesday, January 23, 2013
The tyranny of equality laws
If you have old-fashioned views or use archaic language at work, expect to be reprogrammed by the new overseers of equality.
‘Balancing religious and other rights is horrible work, which somebody’s got to do. Strasbourg reminded us on Tuesday that it does it as well as anyone else.’ This was how a Guardian editorial summed up the Strasbourg court’s judgement last week on discrimination claims brought by four devout Christians. The Independent claimed that the judgements showed the court’s ‘usefulness and general good sense’.
The cases involved four people sacked for expressing religious beliefs in various ways: a registrar, Lillian Ladele, who refused to officiate at same-sex civil partnerships; a relationship counsellor, Gary McFarlane, who didn’t want to work with gay couples; a nurse, Shirley Chaplin, who refused to stop wearing a small crucifix on a chain; and an airline employee, Nadia Eweida, who refused to stop wearing a small cross. Eweida won her case; the other appeals were dismissed.
While the liberal broadsheets supported the judgements, the Daily Mail advanced a Eurosceptic stance by denying that the European Court of Human Rights (ECHR) in Strasbourg was the right place for religious-freedom cases to be determined. But the newspaper didn’t question the right of domestic courts to determine such matters. Indeed, the Mail argued for more court scrutiny, specifically of the medical evidence for the health-and-safety justification given by National Health Service (NHS) bosses for denying nurse Shirley Chaplin the right to wear a cross. Finding a mainstream commentator who questions the right of courts, domestic or European, to rule on workplace behaviour is as hard as finding a uniformed nurse with a visible crucifix.
The ever-expanding world of equality
In recent years, governments have subjected the workplace to a slew of equality and anti-discrimination laws. Now codified in the Equality Act 2010 and supplemented with human-rights legislation, the reach of the legislation has enabled Muslim schoolchildren to claim a right to wear a jilbab and other schoolchildren have claimed the right to style their hair with cornrows. Gay couples have used the act to challenge bed-and-breakfast owners who turned away unmarried guests. The legislation has also been used by many campaigners to challenge welfare cuts, library closures and university tuition-fees to name but a few.
It is not always immediately apparent what these challenges have got to do with equality or anti-discrimination laws. But the legislation readily lends itself to support those who claim to have been subjected to some unfairness on the grounds of age, disability, race, religion or belief, sex or sexual orientation. The ambit of these laws is so wide that there is scarcely a workplace or service-delivery decision that cannot be challenged under the Equality Act.
This is not to say that these challenges always win. Nobody keeps statistics and, in any case, many challenges are compromised before they become public, whether or not they have any merit. The 25 per cent success rate from the four applicants in last week’s cases may even have been higher than normal. What matters is that employees, employers and citizens generally are constantly subject to the threat of legal action under the Equality Act. The possibility of a claim under the Equality Act is there when an employer or school draws up a dress code, when an employee addresses a colleague, or when a service provider makes a spending cut.
The constant threat of a claim
A recent survey of 1,000 workers by the solicitors Allen & Overy highlights the extent of the problem in the workplace. Some people refer to a person who is wholly or partly of non-white descent as ‘coloured’; indeed, some people describe themselves as such. When asked if the term ‘coloured’ was offensive, 50 per cent of respondents said it was, but 38 per cent said it was acceptable. The journalist who wrote up this survey for the Law Gazette under the heading ‘Office banter is not black and white’ noted how the black person who was deeply offended at being called coloured could bring a harassment claim if the conduct was unwanted and causes offence. He also noted that the average tribunal award for race discrimination is £102,259, payable not only by the employer, but in some circumstances shared by the employee as well.
Six-figure damage awards may require pretty serious and persistent conduct, but that misses the point. The employees who have not accepted modern modes of address could find themselves subject to discrimination claims that would cause considerable worry and anxiety regardless of whether the claims succeeded. The Law Gazette article also noted how the gesture of anonymously giving a colleague a St Valentine’s Day gift can amount to sexual harassment where the conduct is unwanted. The lovesick optimist who persists in his pursuit could land his employer in an employment tribunal where the average award for this conduct is £9,940. So the unwanted box of chocolates could turn out to have been very expensive. The price we all pay is even greater, although impossible to quantify, when ordinary human interaction can become the subject of expensive and potentially ruinous litigation.
The four cases ruled on in Strasbourg were about weightier matters than office banter or boxes of chocolates, but they show the extent to which the workplace has become a legal hot potato. It is a strange world that allows an employer’s uniform code to result in hearings before an employment tribunal, the Employment Appeal Tribunal, the Court of Appeal and then the European Court of Human Rights. It is even stranger to note that Ms Eweida’s claim against British Airways (BA) failed in each of the three domestic courts, for different reasons each time, but succeeded by a five-to-two majority in Strasbourg. And it succeeded not because of any bright line of principle that could in future guide employers to know whether their dress code was lawful or not. It succeeded in Strasbourg because ‘the court has reached the conclusion in the present case that a fair balance was not struck’. Equality legislation requires all employers, big or small, to throw themselves at the mercy of judicial discretion.
The decline of discrimination
Eric Pickles, the Lib-Con secretary of state for communities and local government and the minister who has criticised some court decisions for curtailing religious freedom, said he supported the Strasbourg court’s dismissal of the claims brought by Gary McFarlane and Lillian Ladele. McFarlane lost his job with Relate after saying during training that he would not be able to provide sex therapy to gay couples. Ladele was disciplined by Islington Council in north London when she refused to conduct same-sex civil partnerships. Pickles supported these decisions with reference to the need to provide public services on a non-discriminatory basis and he proceeded to say that he could just remember the days when in Bradford there were signs saying ‘blacks need not apply’. Pickles is 60 years old, so is referring to signs that appeared more than 40 years ago.
In her introduction to Blackstone’s Guide to The Equality Act 2010, Baroness Helena Kennedy QC notes that ‘when the model for our anti-discrimination laws was first developed, a sign saying “no Irish, no blacks, no dogs” in the window of a bed & breakfast, or a job advert saying “women need not apply” were commonplace around the country’. Similarly, she notes ‘offensive descriptions of, and hostile attitudes towards, disabled people were also commonplace’. But she, like Pickles, is talking about a different era.
Society has moved on and the attitudes that Pickles and Kennedy refer to as existing decades ago no longer exist, save in the eccentric. Those attitudes no longer have any social force. The misguided office worker who uses inappropriate office banter is a more likely target for a discrimination claim today than the employer who would turn away ‘blacks’. And where a Christian hotelier turns away a gay couple, it’s a safe bet that there will be other hotels and guest houses up the road that will not. This is not to say that all forms of unjustified discrimination have been eradicated, but it is to say that the need for the widespread intervention of the law as sanctioned by the Equality Act is anachronistic and creates far more problems than it solves.
Why the interest in equality today?
Ironically, as the need for anti-discrimination laws has waned, so governments of all persuasions have wedded themselves to an ever-expanding Equality Act agenda. There is as much chance of Eric Pickles repealing some equality legislation as there is of Gary McFarlane providing same sex counselling. Why?
The answer cannot be practical. Whatever the rights or wrongs of the BA decision, nobody can doubt BA’s efforts to accommodate Eweida’s religious beliefs. BA’s dress code had for some years caused no known problems to any employee, including Eweida, who for two years appears to have worn a cross concealed under her clothing without objection. When she complained BA offered her a temporary administrative position which would have allowed her to wear the cross openly without loss of pay. Yet despite those efforts, the Strasbourg court found BA’s decision unlawful. The lesson for employers is that to avoid legal challenges they may as well count angels dancing on a pinhead.
The amount of time and money tied up in drafting and implementing anti-discrimination policies is already substantial. The Allen & Overy survey found that 55 per cent of workers had read their employer’s ‘dignity at work’ policy (a figure I found surprisingly high). It then noted that ‘38 per cent of them had received training on it’ (ditto) in circumstances where an ‘all reasonable steps’ defence would require an employer to do more than just have a policy on a shelf or on its intranet. The report notes that workers ‘need regular training on its implications and their legal liability’.
And therein lies the explanation for today’s prevalence of equality legislation and codes. We live in an era where the powers-that-be do not trust employers, employees or any ordinary person – that is, you and me - to treat each other fairly. Neither do they trust organisations to provide services fairly. ‘Workers need regular training on dignity at work’ is code for saying that workers need to be re-programmed in how to think, talk and behave. Laws, anti-discrimination policies, codes of behaviour and training courses on ‘dignity at work’ become the order of the working day. The non-legal framework within which ordinary human behaviour has traditionally been negotiated is replaced with a legal one from on high. And for those who transgress: see you in court.
The many judgments that courts and tribunals will give on the many claims that are brought will do nothing to provide the clarity on equality legislation that employers understandably claim they need. There cannot be clarity to the many and diverse situations that arise in the workplace. Different staff for different reasons will always want to dress and work differently and for different reasons. It is endemic in equality legislation that the courts cannot establish rules of law that will enable people to know in advance what decision the courts will make. What equality legislation does is transfer power from the workplace to the courtroom. It takes power away from employers, employees and service users and vests it in judges. As I have argued previously, these laws also stifle any proper debate about the important issue of tolerance, religious or otherwise, by fostering intolerance.
The Guardian talks about the ‘horrible work, which somebody’s got to do’. I do not see ‘balancing religious and other rights’ as ‘horrible work’. I see it as an opportunity for there to be a genuine debate in the workplace and elsewhere about tolerance. Left to their own devices, and without the threat of legal proceedings, most staff would resolve their differences amicably. Somebody has got to do it, but it shouldn’t be the courts. The misanthropic argue otherwise.
Denmark says that both men and women's haircuts must cost the SAME PRICE
How deliberately blind to sex differences can you get?
Denmark, which like its Nordic neighbours prides itself on promoting equal treatment for men and women, has taken gender equality all the way to the beauty salon.
A ruling last month by Denmark's Board of Equal Treatment effectively stated that price differences between men's and women's haircuts were illegal.
It ordered a salon advertising women's haircuts for 528 crowns - £59 - and men's haircuts for 428 crowns - £48 - plus an extra fee for long hair, to pay 2,500 crowns - £281- to a woman who had filed a complaint.
Now, a trade organisation for hairdressers has called the decision absurd, saying it will become a nightmare to set prices for customers and warning of 'pricing chaos'.
'It takes, quite simply, longer time with women,' said Connie Mikkelsen, chairwoman of the Danish organisation for independent hairdressers and cosmeticians.
The board's decision has been appealed and a court will determine whether hairdressers need to find a new way to charge for their services, in the length of time, or the standard of the cut.
'Measuring time will lead to a discussion of hair length - what is medium length, and what is long. It will end in a series of conflicts with customers,' Mikkelsen said.
Lincoln: the racist imperialist war-monger Hollywood loves
Don’t be surprised. No Hollywood movie about Lincoln has ever come near the truth, and as long as Yankees control the industry, no movie ever will.
The present film focuses on the political manoeuvrings by Lincoln in 1865 to have the 13th Amendment to the Constitution, meant to prohibit slavery, passed in what was left of the House of Representatives, a rump that was left after the secession of the Southern States.
In effect, Lincoln was trying to rewrite a constitution under which he intended the South would have to live again, but giving the South no voice in drafting the amendment. The amendment would later be forced through for ratification in post-war legislatures in Southern States under military occupation. The passage of the 13th Amendment made the Irish 1801 Act of Union look like a monument to representative democracy.
How much did Spielberg get right on this? Well, imagine the British Conservative party writing a film script about Irish history and you will understand what happens when Yankees do Lincoln.
Abraham Lincoln had a record from the moment of his inauguration of smashing up the Constitution and its Bill of Rights. Picturing him now as being careful to get a new amendment just right is a bit precious.
But the truth is that Lincoln was a racist, war-mongering, anti-liberty, blood-soaked imperialist liar. Lincoln has been deified to justify the conquest and occupation of the sovereign States of the South by the financially-driven vested interests of the North. The truth is, the war was about tariffs and not about slavery.
First I will have to deal with the misunderstandings about slavery as the cause of the war. Here is the American historian Dr Clyde Wilson, writing in Chronicles Magazine in 2011:
‘It is now established with Soviet party-line rigor that the War was “caused by” and “about” slavery, and nothing but slavery. This is not because the interpreters of history in 2011 are more knowledgeable and objective than those of 1961 [the centennial of the war]. Quite the reverse is true. The new orthodoxy does not result from new knowledge. Slavery has been elevated to the centre place of the war because Americans are obsessed with race and devoted to the emotional and financial rewards of victimology. But slavery does not belong there.’
‘The Union never did anything before, during, or after the War with the welfare of black Americans foremost in mind.’
Though of course, Yankees hated slavery. Why? Because in their view slaves were a non-Anglo-Saxon element who had corrupted the South, and left white Southerners – the Cavaliers of America -- both free and prosperous, and therefore independent of Northern Puritanism. For the Yankees of the mid-19th century, writes Dr Wilson, ‘It wasn’t that the black man had too little liberty; it was that the Southern white man had far too much.’
Which takes us to the question of tariffs as the cause of the war. In his book, The Real Lincoln, Prof Thomas DiLorenzo makes the case that the North invaded the South in order to hold onto the tariff revenues which the wealthy, exporting South was forced to pay to subsidise Northern industry.
Higher tariffs for his crony capitalists were the key plank of Lincoln’s 1860 election platform. He had no interest in ending slavery. What he wanted was to exploit the South for tariff revenues, and stop the South buying cheaper manufactured goods abroad.
Increased tariff revenues would also help finance Union expansion into the West, where the Lincoln administration was overseeing the eradication of the Plains Indians in the interest of the President’s cronies in the railway industry. Example: on December 26th, 1862, Lincoln ordered the largest mass execution in American history, 39 Sioux prisoners executed by Union soldiers in one day.
As Paul Craig Roberts, an American economist and former Assistant Secretary of the US Treasury, has written, if the South could be free of the North, ‘Northern manufacturers would be seriously hurt, and maybe bankrupted.’
This is what Yankees meant when they said they wanted to ‘preserve the Union.’ They wanted to preserve the Southern people as captives to Northern business and banking interests. Following the election of Lincoln, the Southern states decided it was time to exercise their undeniable right to secede from the union, just as their grandfathers had seceded from the British Empire.
But let’s get to Lincoln’s Emancipation Proclamation, which people here persist in imagining freed the slaves. It did not, nor did Lincoln intend it should. Slavery was constitutional and Lincoln knew it.
There were legal and moral ways to end slavery, but turning loose on the Southern people men such as Ulysses S Grant, a meat-grinder of a killer, was not one of the ways.
In effect, what the Emancipation Proclamation did was announce that slaves in territory not controlled by the federal government would be freed, but in any territory controlled by Union forces, slaves would not be freed.
In fact, many slaves who ended up in the hands of the Yankee soldiers were not freed, but were forced to work at the worst jobs in the army camps: ‘Welcome to Yankee slavery, here, clean the latrine.’
So ending slavery was not the point of the proclamation. Nor was it Lincoln trying to overcome resistance in Washington to freeing slaves. Rather, Lincoln knew that by 1863, almost no white men were left working on Southern farms and plantations. They were all away fighting. Women and children kept the farms working.
At the time, it was assumed Lincoln calculated that once the slaves heard they had been ‘freed,’ they would rise up and slaughter the white women and children.
The slaves of course never rose and slaughtered anyone, despite Lincoln’s efforts. Why they didn’t, I do not know. Perhaps they were more Christian than I, and perhaps you, would have been in the same circumstances.
Lincoln’s imperialist war ended with 620,000 young men dead (including one-quarter of all white men in the South between the ages of 20 and 40), the economy of the South destroyed, and the South an occupied territory without civil rights or legitimate government for nearly a generation.
Even Virginia, home of Washington, Jefferson and Madison, and the oldest representative democracy in the New World, was reduced by the Yankees to an occupied territory called ‘Military District No 1.’
Orwell should have told this story, not Spielberg.
Australia: Free speech denied to Geert Wilders
The obvious question is, what are they afraid of? Is it fear of violence, or vandalism, or simply fear of association?
Debbie Robinson, a small business operator who describes herself as an ordinary citizen, wants to bring to Australia a Dutch political leader who is a supporter of democracy, freedom of religion, feminism and gay rights. But when she started making arrangements all she encountered was fear.
"In Sydney, venues that were initially available were cancelled or would not take the booking when they realised who the speaker was," she told me. She provided a list of rejections: the Hilton Hotel, North Sydney Leagues Club, Sydney Masonic Centre, Wesley Convention Centre, Luna Park Function Centre, the Concourse at Chatswood and the Sir John Clancy Auditorium at the University of NSW.
"I offered a church-based venue in Sydney a donation and their reply was, 'You could offer $4 million and we would not accept your booking'."
Finding venues was not her only problem. "Earlier in the year I approached APN Outdoor to arrange a four-week run of bus ads in Sydney. The artwork was forwarded to them and I was quoted a price for the job . . . Then I was advised they would not be able to run the ad as it was too political and would result in the buses being damaged and defaced. They would not say who would do the damage."
The same happened in Perth, where Robinson lives, when venues declined to take her booking, including the Burswood Casino. When she tried to organise a payments system for the tour, she was rejected by Westpac. The bank, which has been courting the Chinese Communist government for years, wanted nothing to do with this Dutch democrat.
"I was organising an e-way payment system with Westpac to link to the website of the Q Society [the sponsor of the tour]. I received a call from a manager who said the Westpac Risk Management Team had decided the material for sale was offensive and inappropriate and therefore they would not proceed with the e-way system. I asked to speak to the manager responsible and was told he was on leave."
The Dutch MP causing so much concern is Geert Wilders, the leader of the Party of Freedom (PVV), the king-maker in Dutch politics over the past two years. When Wilders withdrew his support for the government last year, it collapsed and a national election was called.
A month after that election, in which the PVV polled a million votes and won 16 seats, Wilders was scheduled to be in Australia. The trip was cancelled after it was sabotaged by the Minister for Immigration, Chris Bowen.
The minister then had the gall to write an opinion piece, published in The Australian on October 2 last year, in which he claimed, "I have decided not to intervene to deny [Wilders] a visa because I believe that our democracy is strong enough, our multiculturalism robust enough and our commitment to freedom of speech entrenched enough that our society can withstand the visit of a fringe commentator."
Reality check: Bowen's department sat on Wilders' visa application for almost two months, then acted only after the minister received public criticism and Wilders was cancelling his trip.
No such long delay hindered the visit of Taji Mustafa, a spokesman for Hizb ut-Tahrir, an apologist for jihad, when he made a speaking tour in Australia last September while Wilders was being frozen out. When questioned in Parliament, Bowen replied: "Hizb ut-Tahrir has not been proscribed in Australia . . . This entry permit was issued in accordance with the normal procedures for British nationals."
Apparently, the anti-Western Hizb ut-Tahrir is not "fringe", nor worthy of an excoriating opinion piece, but the leader of a party that won 24 seats, 1.4 million votes, and 15 per cent of the vote in the Dutch 2010 election represents an extremist fringe.
People are entitled to loathe Wilders, or shun him. They are also entitled to support him, or hear him. The problems encountered with his visit illustrate the double-speak, double-standards and fear that exists when it comes to the subject for which Wilders is notorious - confronting Muslim extremism.
Neither Wilders nor the PVV have ever been involved in violent conduct, yet he has lived under 24-hour police protection for the past nine years, since two Muslim fundamentalists were arrested after a siege in 2004 and charged with planning to assassinate him.
When Wilders comes to Australia next month for speaking engagements in Sydney, Melbourne and Perth, he will be accompanied by five Dutch security officers. The venues will not be revealed until 48 hours before each speech.
Wilders believes Islam is a political ideology, not just a religion, and should be compared with totalitarian belief systems. He has compared the Koran to Fascism and Adolf Hitler's Mein Kampf. He advocates ending immigration by Muslims because the Netherlands was losing its demographic and social stability. For this he was taken to court for hate speech. He won, but the case occupied three years.
Wilders is opposed to what he calls the Islamification of Europe by a combination of demography, immigration and accommodations by multiculturalism that are not reciprocated by Muslims. Two other Dutch political activists who were similarly critical of Islam were subject to numerous assassination attempts. One was murdered, the other fled to America.
Debbie Robinson believes the fear she has encountered in Australia merely confirms her reasons for arranging Wilders' visit: "With every refusal I asked why, and was almost always informed that management had concerns about the repercussions. The audience was never the issue. The issue was offending Muslims. Looking at the number of cancellations and refusals it is apparent the Islamic community are not getting their message across about being the religion of peace."
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine). My Home Pages are here or here or here. Email me (John Ray) here.