Religious schools and discrimination
The Queensland Anti-Discrimination Act 1991 makes it unlawful to discriminate based on particular attributes, or characteristics, listed in the Act. The Act also outlines where and when discrimination is unlawful, as not all treatment that seems unfair is discrimination. Work and education are two of the areas where discrimination is outlawed.
Education includes applying for admission as a student, as well as the conditions of enrolment and treatment of students.
Work includes applying for work, as well the conditions of work and treatment of workers.
There are some exemptions that allow religious based schools and educational institutions to discriminate, but only in a limited way.
When and where is different treatment allowed?
Under the Act, schools or other educational institutions are permitted to operate wholly or mainly for students of a particular religion. These schools and institutions are allowed to discriminate by excluding students who are not of the particular religion.
A general exemption allows employers to impose a genuine occupational requirement for a position. An example in the Act is a requirement that a teacher be of a particular religion to teach in a school established for students of that particular religion.
A further exemption applies to work for a school or other educational institution that is under the direction or control of a body established for religious purposes.
This exemption relates to the behaviour of a person, rather than a characteristic of a person such as gender, race, or sexuality. There are limits on how far an employer can dictate how an employee can behave in their private life. The permitted discrimination only applies where:
- it is a genuine occupational requirement that workers act in a way that is consistent with the religious beliefs of the school or educational institution; and
- the worker or applicant openly acts in a way that is inconsistent with those religious beliefs during the course of work or doing something connected with work; and
- the discrimination action is not unreasonable.
Whether the discrimination is unreasonable depends on all of the circumstances, including:
- whether the action is harsh or unjust or disproportionate to the behaviour; and
- the consequences for both the worker or applicant, and the employer, if the discrimination happens or doesn't happen.
The exemption does not apply to discrimination on the basis of age, race or impairment – in other words, discrimination on the basis of these attributes is still unlawful. It also does not allow seeking information such a person's age or sexuality, and whether or not they have children.
Harsh, unjust and unreasonable
A teacher who worked at a Catholic school lived in a de facto relationship and had a child. She was dismissed when she returned from maternity leave.The school claimed the main reason for dismissing the teacher was that her pregnancy and having a child when she was not married was a public declaration of a lifestyle contrary to the teaching of the Catholic Church on marriage. The matter came before the Education Service (Catholic Schools) Conciliation and Arbitration Board under the Victorian industrial legislation at the time. The Board found that the dismissal was harsh, unjust and unreasonable under the legislation. The Board concluded that the teacher was not aware, nor would a reasonable person have been aware, of the detailed conditions of lifestyle that the school said it demanded or expected of her. The school was ordered to pay compensation to the teacher.
Thompson v Catholic College, Wodonga (1988) EOC 92-217
Genuine occupational requirement
The Catholic Education Office (CEO) refused to classify an applicant as a teacher for Catholic schools in the Archdiocese of Sydney because the applicant had a 'high profile as co-convenor of the Gay and Lesbian Teachers and Students Association and her public statements on lesbian lifestyles'. The CEO claimed it was an inherent requirement that a teacher in the Catholic system be able to minister in the name of the Catholic church, and that a person who engages in homosexual activity is unable to uphold the doctrines, tenets, beliefs and teachings of the Church. The Australian Human Rights Commission found that there was no evidence of any homosexual activity of the applicant, and that rejecting the application was not founded on the doctrines, tenets, beliefs and teachings, but was in fact inconsistent with them. Any offence to parents and pupils was not an injury 'to their religious susceptibilities but an injury to their prejudices'.
Griffin v The Catholic Education Office (1998) EOC 92-928
In a more recent case, the Queensland Anti-Discrimination Tribunal held that the St Vincent de Paul Society unlawfully discriminated against the president of a conference when it dismissed her because she was not Catholic. The tribunal found that being Catholic was not essential and indispensable to carrying out the duties of president, although it may be desirable. In deciding whether a requirement is a genuine occupational requirement, it is necessary to consider whether the position would effectively be the same without the requirement. In this case the position overall would be essentially the same if there were no requirement that a president be Catholic.
Walsh v St Vincent de Paul Society Queensland (No. 2)  QADT 32