Religious discrimination in employment in Victorian schools: The exceptions narrow

The purpose of changes to the Equal Opportunity Act 2010 (Vic) (the Act) from 14 June 2022, which apply to the employment practices of schools, are said to better balance the right to equality with the right to religious freedom, so that both can be appropriately recognised and enjoyed.

The Act makes discrimination against the law, but it also recognises the need to balance rights. Therefore, there are limited exceptions which means that discrimination may not be against the law in some circumstances.

The changes limit the exceptions for schools in relation to employment and narrow the general exceptions.

General exceptions – religious schools

It will not be against the law for a religious school to discriminate on the basis of a person’s religious belief or activity if the discrimination is reasonable and proportionate in the circumstances and:

1. conforms with the doctrines, beliefs or principles of the religion in accordance with which the school is conducted; or
2. is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion in accordance with which the school is conducted.

The area of employment is carved out of this exception – see below.

The exception is narrowed so that it can only be relied on for anything done on the basis of a person’s religious belief or activity. This prevents religious schools from relying on the exception to discriminate against employees and students (and prospective employees and students) on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

The action taken by a school must be reasonable and proportionate in the circumstances in order to fall within the exception. This could include consideration as to whether the action is harsh or unjust and the consequences for the student or employee and the school.

The specific exemptions for schools that operate wholly or mainly for students of a particular sex, race, religious belief, age or age group or students with a general or particular disability continue to apply.

Employment

This exception is narrower than the general exception. Discriminatory conduct will only be covered by this exception if it is on the basis of religious belief or activity, and not based on other protected attributes such as sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

The exception permits a school to discriminate against an employee or prospective employee in relation to their employment in a particular position only if:

1. conforming with the doctrines, beliefs or principles of the school’s religion is an inherent requirement of the position; and
2. the employee cannot meet that inherent requirement because of their religious belief or activity (or lack of); and
3. the discrimination would be reasonable and proportionate in the circumstances.

In determining whether the discrimination is reasonable and proportionate in the circumstances, relevant considerations include whether the action would be harsh or unjust and the consequences for the employee and the school.

Also, the nature of the school and the religious doctrines, beliefs or principles in accordance with which it is to be conducted must be taken into account in determining the inherent requirements of a particular position.

The types of positions that are likely to be covered by this exemption are religious education teachers and some senior positions, such as Principals and possibly Heads of School, where adherence to the school’s religion is fundamental to their leadership roles. There may be others depending on the nature of the role.

Religious roles

The exception in relation to religious roles continues, so that discrimination on the basis of religious belief or activity would be permitted in selecting or appointing people to perform functions in relation to, or to participate in, any religious observance or practice.

Federal laws

Under Federal law, discrimination by a religious school against an employee or prospective employee on the grounds of sexual orientation, gender identity, marital or relationship status or pregnancy is not unlawful if the discrimination is in good faith in order to avoid injuring the religious susceptibilities of adherents of the religion. To establish lawful discrimination on these grounds requires a complex consideration of the doctrines, tenets, beliefs and teachings of the school’s particular religion and how the susceptibilities of adherents might be injured.

The Federal laws are intended to operate concurrently, to the extent they can, with Victoria’s laws. This raises the question about the extent to which the Victorian laws can continue to apply in certain circumstances – a question that is bound to end up in court at some stage.

Matters for review

We recommend that schools undertake the following:

• review any positions that currently require the employee to hold a particular religious belief and ensure that the requirement is an inherent requirement of the position and, if it is, ensure that the requirement is accurately outlined
• remove requirements for a particular religious belief from position descriptions where the requirement cannot be justified as an inherent requirement.

References: Equal Opportunity (Religious Exceptions) Amendment Act 2021 (Vic); Sex Discrimination Act 1984 (Cth).

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Authored by:

Steven Troeth, Partner
Diana Diaz, Special Counsel
Emma Moran, Senior Associate