Part 3: Practical tips for avoiding discrimination claims
This is Part 3 in a series regarding religious freedom and anti-discrimination law. To read Part 1 in this series, ‘Anti-discrimination law and religious organisations’, click here or alternatively, read Part 2, ‘Religious exemptions: the State of Play’ here.
We recommend that religious organisations and organisations with religious affiliation take the following steps, to minimise the risk of being found in breach of discrimination laws:
Policies & Employment Contracts
Have clear policies and employment contracts, and be upfront about what you expect from employees and people who use your services. If you do expect people to adhere to a particular ethos or religious teaching, then this should be publically stated.
Part of the problem in Christian Youth Camps Limited is that the accommodation provider advertised themselves as offering services to the general public, when this was not actually the case. Had they advertised themselves as a Christian provider of accommodation services (with the accommodation only available for people who adhered to their ethos), they may have been able to establish that they were a religious organisation for the purpose of the Act as it then existed and, under the current Equal Opportunity Act, may also have been able to argue that they fell within the section 60 exemption.
Statement of faith
Have a comprehensive statement of faith. The courts have taken brief confessional statements as if they were intended to state everything that a religious group expects their members to hold. If your organisation has a comprehensive statement of faith, then you will be able to rely on that statement of faith if your organisation finds itself in a dispute.
If you are open about what you expect of people, it is more likely that a court will accept that a particular belief is an integral part of the beliefs of your religious community.
Consistent policies
Have consistent policies, and apply your policies consistently.
A clear example of what not to do can be seen in the Queensland Anti-Discrimination Tribunal case of Walsh v St Vincent de Paul Society Queensland. In that case, St Vincent’s decided that their President needed to be a Catholic (and not just a Christian), at the very time when their existing President was a non-Catholic Christian. The Society failed to convince the Tribunal that being a Roman Catholic was essential to fulfilling the role of President, when they had not consistently taken that view in the past.
Other religious organisations and discriminatory policies
Religious charities, hospitals and welfare organisations need to be very careful if they have discriminatory policies. The very narrow interpretation given by the Victorian Court of Appeal as to what constitutes a ‘religious organisation’ means charities and welfare organisations may not be considered religious organisations for the purposes of the Equal Opportunity Act, even if closely connected to a church or religious community. This is an area ripe for judicial consideration by the High Court but, in the meantime:
— Only have exclusionary employment and other policies if it is necessary to protect the religious values of your organisation; and
— If you do have exclusionary policies, emphasise that this is due to the religious nature of your organisation. The more explicitly religious an organisation is, the more likely it will be considered a ‘religious organisation’ established for religious purposes.
If you have any further queries about anti-discrimination and religious freedom, please call our Charity and Not-for-Profit Law team on 1300 205 506 or alternatively fill in the contact form below.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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