The Victorian Government recently amended the Equal Opportunity Act 2010 (Vic) to better protect Victorian’s in the LGBTIQ+ community from discrimination by religious bodies and educational institutions.
The reforms limit religious bodies and educational institutions from discriminating individuals based on personal characteristics of sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity. The aim is to achieve a fairer balance between the right to religious freedom and the right to be free from discrimination.
Prior to these reforms, a religious school or religious body had broader grounds to lawfully discriminate against a person on the basis of their beliefs or characteristics. For example, a religious secondary school could refuse to hire a teacher, expel a student, or refuse entry to a prospective student on the basis that their personal attributes do not align with the school’s religion, taking into account their gender identity, sexuality, or marital status.
The aim of the reform is to protect individuals from discrimination in the workplace, forcing the employer to eliminate discrimination as far as possible and consider whether it is an inherent requirement of the job that the person’s personal characteristics with the doctrines, beliefs and principles of the religious body or religious educational institution.
The reforms include a new inherent requirement test which narrows the exception for a religious body and religious educational institution to discriminate in the area of employment. The Act now also refers to “religious educational institutions” rather than “religious schools”, to expand the scope to include all educational institutions (such as tertiary level education) and not just schools.
Sections 82A and 83A of the Act now provide that religious bodies and religious educational institutions may only discriminate against a person in relation to that person’s employment, if:
- Conformity with the beliefs or principles of the religion is an inherent requirement of the position; and
- That person cannot meet that inherent requirement because of their religious belief or activity; and
- The discrimination is reasonable and proportion in the circumstances.
Further changes on the horizon
Additional changes to the Act will commence from 14 December 2022, meaning religious bodies that provide goods or services funded by the Victorian Government, will only be able to discriminate on the basis of a person’s religious belief but they will not be able to discriminate based on other personal characteristics such as their sexual orientation, lawful sexual activity, marital status, or gender identity.
What’s not changing?
Religious bodies and religious educational institutions will still have the ability to discriminate based on:
- Ordaining or appointing priests, ministers of religion or members of a religious order
- Training or educating people seeking to be ordained or appointed as priests, ministers of religion or members of religious order
- Selecting or appointing people to perform functions relating to, or participating in, any religious observance or practice
Impact on Employers
For employers, these changes highlight how important it is to understand anti-discrimination obligations and the inherent requirement test.
If you are concerned about your compliance with the Equal Opportunity Act or specifically, the religious reforms exception, please contact a lawyer at Taurus Legal Management on (03) 9481 2000 or info@tauruslawyers.com.au.