BlogDavid TaylorEmployment & Industrial law

Can Religious Schools Discriminate?

At both the national and state level there are a series of laws that are designed to protect Australians from all forms of discrimination based on sex, sexuality, race, religion, age or disability.

While in most cases these provide robust protection from discrimination and harassment, some of these laws contain exemptions for certain organisations that permit them to legally discriminate in some circumstances.

The most well-known of these exemptions is contained in the Sex Discrimination Act 1984 (Cth) which renders it lawful for religious schools to discriminate against employees and students on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy as long as the school is discriminating “in good faith” in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

At present, this law only applies at the federal level meaning that states are still able to make their own rules about whether to permit sexual discrimination in religious schools.

NSW, for example, also exempts religious educational bodies from its sexual discrimination laws and in some ways goes further than the federal law by having no requirement that the discrimination be “in good faith” to avoid injury to religious susceptibilities.

These exemptions make it legally permissible for religious educational bodies to take a person’s sex, sexuality and gender identity into consideration when making decisions about the hiring and firing of staff, as well as in regards to the admission or ongoing enrolment of students.

Do religious schools use these exemptions?

In anticipation of the release of the Ruddock Review into Religious Freedom at the end of 2018, many religious schools endorsed a proposal that the exemption allowing religious schools to discriminate on the basis of sexual orientation, gender identity or relationship status should be made consistent around the country.

The stated basis for this support was that religious schools should remain entitled to the exemptions until such a time as there was a more comprehensive legislative regime enshrining freedom of religion and religious practice. The exemptions, the heads of these schools stressed, had not and would not actually be used to turn away LGBTQI students and staff.

However, whether they are used or not the fact that religious schools are entitled to exemptions under the relevant Acts is arguably still an undesirable state of affairs for two reasons.

The first is a broader point about the message such exemptions send to the community at large, and particularly to young LGBTQI students, that discrimination is socially tolerated and legally enshrined; an issue which the Morrison Government’s proposals to remove the exemption as it relates to students only goes part of the way to addressing.

A second is that reinforces the fiction that LBGTQI teachers and school staff pose a risk to students because of their sexuality.  

The third issue relates to the lack of transparency about the operation and permissible extent of the exemptions, especially in employment matters. Applicants to positions at religious schools, as well as current employees, lack knowledge at present about whether a religious organisation chooses to make use of the exemption or not.  The religious exemption can be employed by a school to hide real reasons for discrimination.

The result is the creation of uncertainty about the security of ongoing employment, the suitability of an applicant for a position, particularly where a position within a school is more administrative than educational in nature, and the potential for the exemptions to be used to mask other, unlawful grounds of dismissal or discrimination.

Employment law provides employers a broad power to counsel and dismiss employees who fail to perform their duties, or who perform them in an inappropriate manner.  An employer is entitled to set reasonable expectations about the way in which work is performed. However, such expectations should not include a demand as to a person’s sexuality.  

Laws that would seek to permit discrimination on the basis of religious belief are poorly considered and should be rejected.

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