Should religious organisations be allowed to choose employees based on their faith?
A vote in Victorian Parliament this week could determine if faith is an inherent requirement of any role
Imagine if one of the big banks announced that it would no longer employ Christians. Eternity readers would be outraged. Yet some other groups in society are outraged when Christian employers, such as schools and welfare agencies, seek to only employ Christians for all or most of their jobs.
That has led to a proposal to restrict the right of Christian employers to choose who they employ. Whether Christian organisations can have a faith test for some or all of the jobs they need to fill, is the subject of a Victorian government bill being debated this week.
Is faith an inherent requirement of the job?
Under the Labor government led by Premier Daniel Andrews, Victoria regards itself as the progressive pacesetter of Australia. Their laws may spread throughout the rest of the country.
The new faith test being debated by the Victorian government is around “Inherent Requirements” – a new test to see if a job can be restricted to people of a particular faith. The test asks: “Is faith an inherent requirement of the job?”
The type of rule applies to most jobs at present. Agreeing to serve alcohol is an inherent requirement of being a bar tender. This means that someone under eighteen years old can’t be hired. The normal rule against age discrimination does not apply.
If passed, the Victorian government’s bill will mean schools and other religious organisations only will be able to discriminate or choose to hire on religious grounds if they can prove that that conformity with the “doctrines, beliefs or principles” of the religion is an inherent requirement of the position.
Most likely a Christian school can require that a head of school or chaplain meets a religious test. But what about a science teacher or a gardener?
Most likely a Christian school can require that a head of school or chaplain meets a religious test. But what about a science teacher or a gardener? Some schools want staff to be believers, others want staff to uphold a “Christian ethos”. Both approaches might be threatened.
Because the independent schools sector is so large, and 95 per cent of independent schools do have a religious connection, at first glance the new rules appear reasonable.
Where this new rule may get problematic is in letting the courts decide where the boundaries are.
A paper by Greg Walsh, senior lecturer at Notre Dame University’s School of Law lists some troubling court cases.
In Walsh v St Vincent de Paul Society Queensland [No 2], the Queensland Anti-Discrimination tribunal held that the Society had discriminated on the grounds of religion, by requiring a person to be Catholic if they held the position of President. The complainant, a volunteer, was successful in the discrimination complaint because the employment role was not considered to have had sufficiently religious content – despite it being a leadership position with religious duties in an organisation with spiritual aims.
In Hozack v Church of Jesus Christ of Latter Day Saints, the case concerned a married employee who entered a sexual relationship while not yet divorced. The ruling concluded that a receptionist was not “a position from which anyone would normally expect any particular leadership or example”, and so she should not have been dismissed.
…instead of encouraging diversity and tolerance, the test may produce schools with less religious diversity.
Courts sometimes have accepted the argument that an enterprise, though run by a church, is not religious in nature. This was key to the finding in the Cobaw Community Health Services v Christian Youth Camps Ltd case. The finding held that that Christian Youth Camps had breached the Equal Opportunity Act 2010 (VIC) by refusing to provide weekend accommodation to a welfare organisation aimed at helping same-sex attracted youth.
In a case involving Wesley Mission – a conservative group within a generally more liberal church network (the Uniting church) – a tribunal examined whether Wesley’s adoption agency should be required to accept gay carers in an adoption programme. It had to determine what the appropriate religious doctrine was.
The inherent requirements test will not only be subject to courts entering the dangerous area of religious doctrine; the test may have unintended consequences beyond that. As Walsh points out, instead of encouraging diversity and tolerance, the test may produce schools with less religious diversity. A school may decide to require all teachers (or many) to teach religion in order to preserve their hiring practices. Groups outside the mainstream of their denomination (church network) may be encouraged to separate, in order to preserve their rights to hire according to their particular take on faith.
It’s worth noting that in God’s kingdom, the least important people (in the world’s eyes) may do the most important things.
“There was a chaplain there. There were teachers there and there was pastoral care. But this maintenance guy connected with one of my children and made a huge difference in their life, because he shared the values of the school.” – Rob Ward
Rob Ward, formerly State Director of the Australian Christian Lobby in Victoria, and occasional writer for Eternity, gave evidence at an earlier Victorian inquiry into the right to prefer Christians in employment in religious organisations.
“One of my children, who shall remain nameless, received greater pastoral care and made a greater connection in some of his struggles through school [through a friendship with] the maintenance guy at the school,” said Ward. “There was a chaplain there. There were teachers there and there was pastoral care. But this maintenance guy connected with one of my children and made a huge difference in their life, because he shared the values of the school.”