Victoria's Equal Opportunity Act: inherent requirements and the problem of discrimination

Where an exception applies, the conduct is a lawful discrimination or differentiation and not prohibited discrimination. These exceptions are the balancing provisions which pull the Act back from prohibiting a very large number of sensible differentiations that fit with community expectations and lived experience.

To give an example, the Act prohibits discrimination in sport in such broad terms that it would be unlawful discrimination to run a competitive sports meet in Victoria like the Olympics. However, there are several "exceptions" in the Act which allow sporting competitions to discriminate on the basis of physical abilities like strength and stamina, as well as allowing single gender competition.

In other words, while the Act seeks to give expression to the broad value of treating people who are in the same position in the same way, it is the balancing provisions or exceptions which make the Act workable. These provisions balance the value of equal treatment with all the other values our society prizes such as:

• multiculturalism and pluralism accommodating and permitting the expression of different cultures and faiths (and people of no faith) with different values;
• giving rewards for greater achievement or effort (competitive sports up to and including the Olympics and academic or other competitions which give such rewards are highly discriminatory);
• giving special assistance to the disadvantaged which are not available to most people;
• freedom of conscience and freedom to associate with those we wish to and freedom not to associate with those we don't want to even though that involves a differential treatment (for example Family Planning Victoria should not have to employ advocates for the Right to Life and vice versa).

Some 42 sections in the Act create different exceptions or balancing provisions which help balance the value of equality with these other values which our society holds dear.

Under the Act, discrimination can only occur if the unfavourable treatment is based on a protected attribute. The classic protected attributes were race and gender but the categories of protected attributes have been expanded greatly over the years and now include age, disability (impairment), political belief or activity, religious belief or activity, lawful sexual activity, pregnancy, breast feeding, physical appearance, sexual orientation and gender identity. The expansion of protected attributes brings with it complications for the policing of discrimination; hence the need for exceptions.

For example, it is reasonable to bar pregnant women from some carnival rides which might injure them or the child they are carrying, but it is discrimination under the broad definition in the Act. Another pertinent example: it is reasonable for one political or religious organisation not to employ people who hold and pursue starkly contrary beliefs to the organisation. But it is discrimination under the broad definition in the Act.

Problems with the "inherent requirements test"

Thus far, we have dealt with the question of discrimination itself, and the way in which exceptions in the Act allow for reasonable instances of discrimination. But what about the idea of an "inherent requirements test"? The new bill reintroduces the requirement for religious bodies, be they schools, churches, or otherwise, to demonstrate that the religious or doctrinal grounds upon which someone was refused employment is an inherent requirement to the particular role they were applying for.

However, there are a number of problems with this proposal, some of which will be outlined below.

First, the bill undermines the freedom of association of citizens to establish and maintain voluntary associations which express and promote particular views of what is good and right. Those views may be based on ethnic, cultural, religious or political values. Under the proposed bill the law would effectively require religious voluntary associations to accept and accommodate the views and conduct of some employees and, in the case of schools, any students whose expressed beliefs and conduct relating to gender and sexuality do not conform to the values which the religious association is designed to promote and model.

But wouldn't it be considered ridiculous if the law forced the Greens to employ climate change deniers as public spokespeople or call centre operators and put up with their internal and external advocacy against climate change? And yet this same principle is at play here. Under the proposed legislation the expressed values and conduct of many employees and students trump the values and ethos of the religious body or school.

Second, in many cases, especially with school students, these clashes of values are worked out sensitively in negotiations between the religious school and the student and parents. But in hard cases where a negotiated outcome cannot be reached, we need to remember that an individual employee or student with non-conforming values or conduct can resolve the dispute by moving to another school. For example, they could move to a large number of independent schools or any government school and find that their views or conduct in relation to sexual activity or sexual orientation attract no objection. But the religious body or school cannot go elsewhere. Its ability to maintain its ethos and values for its other members, students and parents in these matters is denied by the State and once compromised cannot be recovered.