News & Insights

The Victorian Government recently amended the Equal Opportunity Act 2010 (Vic) (Act), with the focus on creating stronger protections against discrimination based on religious beliefs.

How did discrimination laws work with religious beliefs before the Amendment?

Before the introduction of the Amendment, the Act allowed religious bodies or religious institutions such as schools, to discriminate against a person due to personal characteristics they may have. For example, religious schools could lawfully refuse to employ a teacher if their personal characteristics were not in line with the beliefs of the school’s religion. This meant that religious schools were able to fire or choose not to hire employees whose sexuality, marital status or sexual identity differed from the values of the religion, where the school believed it was necessary to avoid injuring the beliefs of the religion.

Changes under the Amendment

Under the changes, schools can only discriminate where conformity with the religious beliefs is an inherent requirement of the job, and because of a person’s attribute they cannot meet this inherent requirement. This means that it is now tougher for schools to fire or refuse to hire employees whose sexuality, marital status or sexual identity is not in accordance with their religious beliefs, as these personal characterises may not preclude someone from meeting the inherent requirements of their job.

The Act seeks to strike a balance between people’s right to equality and the right to religious freedom in the least restrictive way possible. The inherent requirement test enforces a higher bar on religious institutions to establish the necessary religious beliefs for discrimination using religious grounds. However, it also enables them to discriminate in employment where their beliefs are an inherent requirement of the position. The test only applies to personal attributes of an employee which may not be in line with religious beliefs. These attributes include sexual orientation, marital status, parental status or gender. The test ensures that individuals employed by religious institutions are afforded greater protection against discrimination.

What does this mean for employers?

It is more important now than ever before that employers have appropriate training on what constitutes discrimination in the workplace. It is imperative that employers in religious and not-for-profit sectors understand in what circumstances they are able to use the inherent requirements test to hire and fire employees. Failing to adhere to this new test could see employers falling foul of the discrimination laws and leave them vulnerable to claims in the Victorian Equal Opportunity and Human Rights Commission.

The Employment Safety and Migration team at Macpherson Kelley is well versed in discrimination laws and are able to provide workplace training and hiring firing advice, to ensure you and your business are protected from adverse action.

If you would like to discuss how these new discrimination laws affect you, please do not hesitate to contact our team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.