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US Catholic school changes anti-discrimination policy to allow LGBT employees: Is Australia next?

16/09/15
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The Daily Journal reports that St Mary’s Academy in Portland, Oregon has added sexual orientation to their anti-discrimination policy and effectively welcomed gay and lesbian staff to the school.

The facts:

The Catholic school received a significant amount of backlash earlier this month for withdrawing a job offer for a guidance counsellor position at the school after the woman asked the school board what the effect of her marrying her female partner would have on her position.

The school had offered Ms Brown a year’s salary, just over $40,000, to remain silent on the situation. Ms Brown told Portland newspaper Willamette Week that she declined to sign the confidentiality agreement because it would prevent her from sharing her experience in her advocacy LGBT youth.

While this is hardly the first report of a school terminating openly gay staff, parents, students and alumni were outraged that the school would be so discriminatory when it has embraced similarly sensitive issues in a progressive way, for example teaching students about birth control even though it goes against the Church’s teachings.

In response to this incident and the reaction of those in the school community, St Mary’s has amended their hiring guidelines to include ‘sexual orientation’ to the list of characteristics that must not affect the employment of new staff at the Catholic school.

Sexual preference discrimination in Australia

Although this occurred in the US, there is no reason why Catholic schools in Australia could not take a similar stance of LGBT employees.

In Australia, anti-discrimination laws in each jurisdiction prohibit discrimination against a person because of personal characteristics such as age, race, disability and political beliefs.

However, Commonwealth anti-discrimination legislation provides an exemption for religious private schools who choose not to hire an individual as a member of staff on grounds that would otherwise be discriminatory, if that decision is in abidance with the school’s religious affiliations.

This is commonly referred to as the ‘religious institutions exemption’ and means that, for example, if homosexual behaviour is against the teachings of a religion with which the school is affiliated, a school’s decision not to employ a person who engages in a homosexual relationship will not be considered discriminatory under Commonwealth anti-discrimination laws.

In addition to legislative protection from discrimination, religious bodies and faith based-educational institutions are able to employ contract law as a means for escaping discrimination liability and imposing the church’s values on prospective employees. Ethos clauses in contractual agreements between employers and employees are a traditional avenue for religious schools ensuring their teachings and beliefs will be exemplified by their staff.

We have previously written about ethos clauses written into enterprise agreements for teachers employed by Catholic schools as a means to set out the employer’s values and the expectation that the employee’s values align with theirs.

While contractual agreements may appear to give schools the power to terminate employees who fail to demonstrate the religion’s teachings, there are limits. For instance in Queensland, this kind of ‘permitted discrimination’ is only available to schools where it is a genuine occupational requirement that staff act in a way consistent with the religious beliefs of the school, the staff member in question openly acts in a way that is inconsistent with these beliefs and the discrimination is not unreasonable, unjust or disproportionate to the behaviour.

Reform is not impossible

Over the years there have been numerous challenges proposed to this exemption, none succeeding in achieving anti-discriminatory equality between public and private schools in Australia. Earlier this year for example, independent Sydney MP Alex Greenwich led the call for discrimination law to protect gay and lesbian teachers in private schools. Mr Greenwich introduced a similar Bill seeking to protect LGBT students from discrimination in 2013 but the Bill wasn’t supported by the State government of the day.

NSW Education Minister Adrian Piccoli has also spoken out on the issue and supported the call for anti-discrimination laws to apply equally to all schools in the State, and that schools who are discriminating against students would find themselves at risk of being de-registered. But what about staff?

The Age reports that the Victorian Greens are to propose the removal of the religious institution exemption in a Bill to go before Victorian Parliament soon. Last week Greens’ spokesman Sam Hibbins has said that he is preparing a Bill to remove blanket exemptions for religious groups from discrimination laws in relation to schools under the Equal Opportunity Act 2010. If the Bill passed both Houses it would make it unlawful under Victorian discrimination laws to disallow transgender students attending same-sex religious schools, wearing the uniform of their choice at co-ed schools, or allowing gay and lesbian teachers to work at religious schools.

At present, schools that are affiliated with a religious organisation are still exempt from certain discrimination provisions where the decision not to hire a member of staff teaching is made in good faith in order to avoid injury to the religious susceptibilities of members of that religion. There is however a great deal of pressure building within Australia for students and staff to be treated equally despite their sexual orientation or preference, whether stated or unstated.

 

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About the Author

Cara Novakovic

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