Why can't we all just get along?

There may be a question mark as to whether the Manurewa Cosmopolitan Club is acting unlawfully in stopping Sikh men from eating at its restaurant. But there's no question that it is acting stupidly.

The Manurewa Cosmopolitan Club has gotten itself back into the media with its dogged refusal to allow Sikhs to dine or drink on its premises whilst wearing a turban. To make it clear, this isn't because the Cosmopolitan Club does not like Sikhs. Rather, it is because it has (sort of, as well see) a rule saying that headwear may not be worn on the Club's premises and it refuses to make an exception to this rule for individuals whose religious beliefs require them to do so.

The Cosmopolitan Club hit the headlines for this back in 2009-2010, but despite going through mediation with the Human Rights Commission has refused to alter its stance. I don't know why - I can only guess that the Club members decided they weren't going to be bullied into changing by PC gone mad, or some such "reasoning" - because as we'll see, not only is their rule daft, but it is entirely unnecessary.

For a start, it seems likely to me (but by no means certain) that what the Cosmopolitan Club is doing is unlawful. Here's the relevant bit of the Human Rights Act:

44 Provision of goods and services

(1) It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—

(a) to refuse or fail on demand to provide any other person with those goods, facilities, or services; or

(b) to treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,—

by reason of any of the prohibited grounds of discrimination [i.e. religious belief].


(4) Subject to subsection (3), nothing in this section shall apply to access to membership of a club or to the provision of services or facilities to members of a club.

The Club's "no headwear" rule - more on that in a second - means it in practice refuses to provide any Sikh person who enters its premises with food or drink (as we've seen from its actions). Wearing the turban is central to Sikh beliefs; it isn't just an item of clothing that can be removed for aesthetic or convenience reasons. Remember back just a few weeks to the case of Harman Singh, who removed his turban to cradle the head of a six-year-old boy injured in an accident - an action considered so noble and remarkable that it literally made international headlines. If it had been a t-shirt or other ordinary piece of clothing, no one would have blinked twice

So a rule that in effect says "you can't eat or drink here with a turban on" is what is known as "indirect discrimination" on the basis of religious belief:

This occurs where a 'conduct, practice, requirement, or condition' appears neutral but has the effect of treating a group of persons differently in a manner inconsistent with the Human Rights Act. In other words, a seemingly benign requirement has a disproportionate, adverse effect on a particular person or group of people."

So assuming that section 44 applies to the Cosmopolitan Club, its blanket "no headwear" rule is just as unlawful as a rule that expressly says "no Sikh people may eat or drink here".

However, there is a bit of a grey area over whether section 44 applies to the Cosmopolitan Club - or, rather, just how subsection 4 applies to the present situation. The Cosmopolitan Club does supply services to the public as per subsection 1; here is its restaurant menu for the world to see, and according to its rules any of its members may invite anyone to be a visitor at the restaurant (hence it serves at least "a section of the public"). So we're not dealing with an facility that is entirely self-contained and only deals with people who first have to be members of an organisation, which looks to be what subsection 4 talks about in terms of "a club".

But that said, the Cosmopolitan Club's rules also say that:

The admission of visitors should always be regarded as a privilege of the members granted to enable them to dispense periodic hospitality to their casual guests and should at all times be subordinated to the comfort, well being and satisfaction of the Club’s members.

So it is arguable that the Cosmopolitan Club's serving of non-members is actually a form of "provision of services or facilities to members of [the] club", bringing it inside of the subsection 4 exception. Which is why the Human Rights Commission says only this in its advice on the impact of the Human Rights Act on private clubs:

Clubs that allow their services or facilities to be used by the public may not be covered by the exception in the Human Rights Act. For example if a club opens its facilities to a group broader than its own members or members of affiliated clubs, the club may not be able to rely on the exception in the Human Rights Act. This has yet to be tested in the courts.

We will have to wait to see what the Human Rights Review Tribunal says about this if and when it gets to look at the matter - as it apparently was going to be back in 2010, but never seemed to do. So I'll leave the question of the strict legality of the Cosmopolitan Club's actions to one side and move on to the substantive basis for its rule.

Because what really strikes me as weird about this whole saga is that the Cosmopolitan Club could so easily avoid the discriminatory effect of its "no headwear" rule. If you read the Clubs own rules on dress standards - which, bizarrely, do not expressly state that headwear cannot be worn on club premises ... seriously, it's not on the Club's list of prohibited clothing items - you will find that:

Subject to Management approval only, the following items of headwear may be worn within the Club:-
(a) Headwear required for medical reasons
(b) Headwear for special Club events.

So the Cosmopolitan Club already allows some people to wear headwear on its premises under certain circumstances, including for the Cosmopolitan Club's own "special events". It doesn't have a blanket objection to all headwear - it just will not stretch the allowable exceptions to accommodate the religious beliefs of attendees.

Well, why not? I don't really know. The Cosmopolitan Club's Manager, Patricia Rangi, is quoted as saying:

We're not against the religion - it's just a long-standing rule. It just rules out caps and hoodies and beanies.

Which seems very silly indeed. It would be very, very easy for the Cosmopolitan Club to include an exemption in its rules for hearwear worn for religious purposes without thereby fatally undercutting the purpose of its dress rules - just as the exemption for headwear required for medical reasons hasn't resulted in the Cosmopolitan Club being overrun by beanie wearing ne'er-do-wells. There is no religion that requires its adherents to don caps or hoodies or beanies at all times - not even in South or West Auckland.

So to my mind, irrespective of any question mark over the legality of its actions, the Manurewa Cosmopolitan Club is being plain dumb. And here's a way to establish once and for all that it legally can't do what it presently is doing. The Human Rights Act 1993, Section 44 contains subsection 3:

Where any club, or any branch or affiliate of any club, that grants privileges to members of any other club, branch, or affiliate refuses or fails on demand to provide those privileges to any of those members, or treats any of those members less favourably in connection with the provision of those privileges than would otherwise be the case, by reason of any of the prohibited grounds of discrimination, that club, branch, or affiliate shall be deemed to have committed a breach of this section

The Human Rights Commission sums up the effect of this proviso thus:

Different clubs belonging to the same association may provide services differently.  However, one club cannot deny members of another club belonging to the same association access to facilities or services on one of the grounds on which it is unlawful to discriminate. For example, if one bowling club allows men and women members, and a second only men, if the first bowling club is visiting the men-only club, the visiting women cannot be prevented from using its services if the clubs are part of the same association.

Note that subsection 3 takes precedence over subsection 4, so the Cosmopolitan Club can't hide behind the exception granted there to defeat its legal obligations towards members of affiliated clubs. Then note also that the Manurewa Cosmopolitan Club is a member of ClubsNZ - meaning that it extends reciprocal visiting privileges to "affiliated members" (those who are members of other organisations who are part of ClubsNZ).

So, here's a suggestion for the Sikh community in Maurewa. Find a club that is that will allow you to join and partake of its services without discriminating against you based on the fact your religion requires you to wear a turban - such as the Mangere Cosmopolitan Club. Then go to the Manurewa Cosmopolitan Club and say you want to sign in and eat there as an affiliated member. If they don't give you the "warm welcome" that their homepage promises, then they've absolutely certainly acted unlawfully.