There has been a lot of public comment on section 37 of the Employment Equality Acts recently. Much of it has been negative in tone and has argued that the section seriously undermines the human rights of teachers working in denominational schools. It is important to bring some balance to this debate, not least because a provision such as section 37 is all about balancing legitimate rights.
The Employment Equality Acts outlaw discrimination on grounds of gender, marital status, family, sexual orientation, religion, age, disability, race and membership of the Traveller community. There are exceptions: over-65s or under-18s can be treated differently, and a minister can make special orders about the Garda Síochána, the prison service, emergency services and the Defence Forces, including on grounds of age and disability.
Section 37 also allows employers with a religious ethos to give “more favourable treatment” to employees on religious grounds. Thus a church, a temple, a synagogue or a mosque does not discriminate if it requires that certain employees must share the faith supported and celebrated in these institutions.
Without this provision, these employers could never use religious adherence as a basis for employment even when it is clearly a relevant and important aspect of a position. Consider a pastoral worker in a parish, a youth worker in a diocese, a promoter of a faith-based project: it is surely reasonable to give favourable treatment to those who share the religious faith these positions seek to foster. Section 37 allows employers with a religious ethos to do just that; the Acts give expression to the constitutional right of religious denominations to manage their own affairs (article 44).
Inalienable right and duty
What then of denominational schools? The Constitution acknowledges the primary and natural educator of the child is the family (article 42) and respects the inalienable right and duty of parents to provide for the religious, moral, intellectual, physical and social education of their children.
Clearly, very many parents wish, in accordance with their constitutional rights, to provide this for their children through denominational schools. These schools – Catholic, Protestant, Jewish, Muslim – are founded on a religious ethos. Religious faith is experienced by believers as a source of hope and enlightenment (not a restriction or unintelligent), a gift (not a choice or acquisition) and a blessing (not a burden or constraint).
Understood as such a fundamental human good, religious faith is something believers naturally want to share with others, especially their children. Many staff and students in denominational schools also experience faith as life-giving. The hope is that all members of the school community will experience the religious vision and ethos as an invitation, not a closed door.
Patrons, managers and employees of denominational schools have legal and moral obligations to parents to ensure the schools live out the ethos they espouse. If they are denied the means to do so, the constitutional rights of parents to such a denominational education could be nullified.
The employment rights of teachers must be respected. Teaching is among the most demanding of human endeavours. The teacher must deal with up to 35 people at a time, all day, every day of the school year. And not just “deal with” – the teacher must seek to educate. That is why teachers are very tired at the end of each school day and exhausted at the close of each term.
Also, the teacher is interacting not with adults but with children. Parents entrust their children to teachers, who act in loco parentis. For this reason schools have responsibilities unlike other institutions. In this context we must protect teachers' employment rights. These legitimate rights must be reconciled and balanced with the rights of parents regarding education.
Convictions and traditions
Striking the right balance is the responsibility of our lawmakers. Section 37 is an effort to balance these legitimate rights, and its provisions have been upheld as constitutional by the Supreme Court. Those who propose to amend it must also seek balance, and in doing so keep in mind that schools exist primarily not to employ teachers but to assist parents in educating their children. Nobody proposes reducing the pupil-teacher ratio to increase the number of teachers but rather to improve education. Schools are not data-processing centres: they are the most notable of human institutions, where parents want their children educated in accordance with their convictions and traditions.
Many European countries have provisions similar to section 37, and EU law recognises the importance of ethos in religious institutions. Indeed, any amendment of Irish law must take account of the EU’s framework directive. It establishes an EU-wide framework for equal treatment in employment but balances this with protection of the right of belief-based organisations to require those working for them to act in good faith and with loyalty to the institution’s ethos.
Denominational schools in the Republic are committed to protecting the rights of teachers. Legislation in this area, however, must maintain a balance with the rights of parents to have their children educated in a school with a living religious ethos and the rights of religious communities to establish and run educational and other institutions that give authentic expression to their faith.
Fr Michael Drumm is chairman of the Catholic Schools Partnership
