Saturday, April 17, 2010

Equal Opportunity Law Revisited

This Thursday the Equal Opportunity Bill 2010 passed through the upper house of Victoria's Parliament, the Legislative Council.  It has now passed into law.  The following day I read some of the Upper House speeches with particular interest.  Members of the Legislative Council reported that they had received thousands of submissions from members of the public who were concerned about the new Bill.

The major focus of public concern has been whether Christian organizations will be able to employ like-minded people to their organizations, for example:  Can a Christian school favour Christians when filling teaching staff vacancies? Can a Christian aid agency favour Christians in senior management roles?

The issue is particularly pointed for Christian schools, because thousands of students in Victoria attend schools where up until now every member of staff has been required to adhere to religious and ethical principles as part of their employment contract.  Tens of thousands more attend schools where there has been a tradition of favouring teachers who share the religious and ethical values of the school. Since the passing of this new bill, it is unclear whether these employment arrangements have now become unsustainable.

The crux of the controversy is just a few paragraphs relating to employment, which mean that a religious organization can discriminate on any grounds at all in employing someone if
a) "conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position," and
b) the person's "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that he or she does not meet that inherent requirement."  
This means that if someone does not meet a religious test related to the position – defined in terms of 'inherent requirements – they will have no protection from discrimination.

Something about this puzzles me greatly.  Let me explain.  If being a Catholic is an 'inherent requirement' of a position, and someone occupying the position renounces Catholicism, then the employer could discriminate against this person on the basis of their age, or physical impairment, or indeed any other attribute.  This seems unfair.  As another example, if being a Buddhist is an inherent requirement of a particular position, but parental status is not, then a Muslim single mother who happened to occupy the position could be discriminated against on the grounds of her parental status, but a Buddhist woman in the same position would have full protection from discrimination on grounds of parental status.

I expect that the Government intended something else.  They probably meant that discrimination would be allowed on the basis of the attribute which caused the person not to meet the inherent requirement of the position.  Unfortunately, this is not how the law has been written.

However the reason for the general public's sense of alarm over the law is not the issue I have just raised of clumsy drafting, but that the 'inherent requirement' test will be interpreted narrowly by our courts, and in a very secular way. 

An 'inherent requirement' of a position is a core essential component.  The concept of 'inherent requirements'  developed in relation to accommodating people with disabilities.  Someone with an impairment might need to do a task in a different way, but the important thing is whether they can do the task, not how they do it.

Disabilities are one thing.  What is really very unclear is how the concept of 'inherent requirements' will be extended to religious requirements of positions.  In the Legislative Council speeches there seemed to be confusion around this subject.  For example Labor Member, Mr Johan Scheffer, speaking in favour of the Bill, confusingly stated that:
Where a religious body or school wishes to discriminate in the employment of a person on the basis of the person’s conformity with the relevant religious doctrines or their religious belief, sexual orientation, marital status or gender, they will be required to demonstrate that the basis of the discrimination is an inherent requirement of the religion.
This is not correct.  The test is not whether the basis of the discrimination is an inherent requirement of the religion, but whether it is an inherent requirement of the position.

The problem is, no-one really knows what this will mean in practice.  I have had some interesting conversations with a lawyer friend who is confident that:
If there is clear evidence that the way in which a school or church group is conducted is genuinely informed by faith-based principles on the sanctity of marriage or some other matter, so that those values are taught by maths teachers as well as religious studies teachers,  then I don’t see why we need worry that they would be found to be unlawful if they insisted on such matters in their employees.
The multi-million dollar question here is what does 'taught' mean?  Does it mean, for example, that if a school wants to employ teachers who believe the Nicene Creed, that this will only be possible if the mathematics or chemistry teachers actually 'teach' the Nicene Creed as a formal part of the mathematics or chemistry curriculum?  If a school wishes to prefer to employ Christian teachers, must they make every teacher a religious education teacher?

I paid particularly careful attention to the statements of Mr Brian Tee, Labor party member of the Legistlative Council:
... what it demands is a degree of transparency and a degree of accountability. What it says is that if you are going to discriminate on those grounds, then that discrimination must be justified or must be in conformity with the religion, and it must be an inherent requirement of the job. So if we are going to allow a school to deny a job to a woman, to a mother, to a wife, then I think that discrimination should have been justified by reference to the nature of the job and by reference to the religious doctrine.
If you are going to deny someone a job because they are gay, if you are going to deny them that opportunity, then what the bill does is say you need to demonstrate that that decision is made in accordance with the religious doctrine; and the nature of the employment means that the person is not suitable.
Talk about having it both ways. This is quite clever.  Those who are concerned about being discriminated against – for example gay people or single mothers – will hear that this can only happen if it is justified because the nature of the employment means they are unsuitable for the work.  How attractive this sounds! On the other hand the religious employer is meant to hear that discrimination will be possible if it is justified by their religious beliefs. Again, how attractive this sounds!

The difficulty arises that people do not agree on what is justified.  Both sides will have their hopes raised by this law.  But no-one really knows whether a Muslim school will be able favour Muslims in employing its VCE mathematics or science teachers.  In the end, the courts will have to decide, and because their decision will be contingent on the particular doctrines, beliefs and principles of the school, the courts will have to decide on a case-by-case basis. 

This will not be easy.  In each case, at least three doctrinal issues will need to be resolved 

The first doctrinal issue will be to determine what is 'the religion' of the organisation.  For a Catholic body this will be straightforward, but for many Christian agencies it could be quite difficult.  One can think of a recent case involving the Wesleyan Mission in Sydney (in relation to gender identity discrimination).  At first the courts decided the religion was 'Uniting Church', but the Appelate Tribunal decided that the religion was 'Wesleyanism' [(Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 (1 October 2009].  If an evangelical Anglican parish is taken to VCAT, will the religion be 'Anglican' or 'Evangelical Anglican'?  And what about parachurch agencies, with no denominational identity.  What will 'the religion' be in these cases?  'Vanilla Christian?'

The second doctrinal issue will be what are the 'doctrines, beliefs or principles' of 'the religion' as they apply to "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity".  Again, the Catholics will do well on this one.  They have a detailed catechism which dots every i and crosses every t.  But for some 'religions' this will be a big ask.  I say - good luck to them!  A lot of people will be interested to discover from our courts' rulings what is the doctrinally correct Anglican, Baptist, Unity Church or Lutheran position on gay marriage.

The third doctrinal issue will be whether faith-related attributes are an 'inherent requirement' of the particular position.  A key question will be to what extent the religious doctrines, beliefs and principles of the organization can impinge upon the 'inherent requirements'.  Is the religious character of an organization enough to justify the claim that employees should be religious too?

I am grateful to Cameron Macaulay for drawing to my attention a case where the right of the Army to discharge an HIV positive soldier was upheld (McHugh J in X v Commonwealth [1999] HCA 63; 200 CLR 177 at [31] ff).  The ruling includes some relevant comments about the importance of context in determining inherent requirements of positions:
31.   Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment[24]. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee[25] with the result that an employee breaches those requirements or obligations when he or she discloses confidential information[26] or reveals secret processes[27]. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment[28]. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).
32.   Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely "so obvious that it goes without saying"[29] - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment[30]. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties[31]. 
33.   It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.
 34.   So much was recognised by this Court in Qantas Airways Ltd v Christie[32]. Although at age 60, Mr Christie undoubtedly still had the physical ability to fly 747's, the age limit of 60 imposed by other countries on pilots in their air space meant that, if Mr Christie were to be continued to be employed by Qantas, he could only be assigned to a restricted number of routes - a situation which would cause great disruption to, and perhaps the ultimate failure of, Qantas' roster system for assigning pilots to routes. In this context, the Court held that Mr Christie was unable to carry out an inherent requirement of his position, namely, the capacity to fly to all (or at least a reasonable number) of Qantas' international destinations. I said[33]:
"It was plainly an 'inherent requirement' of the position of such a Captain that he or she should have the capacity (physically, mentally and legally) to fly B747-400 flights to any part of the world. That was an indispensable requirement of the position." 
35.   Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to "past training, qualifications and experience ... and all other relevant factors", confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment. 
There is a paragraph in the new Bill which appears to strengthen religious organizations' ability to invoke this idea of context being part of 'inherent requirements':
(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).
However,  even if the religious nature of a body is taken into account, this is not going to ensure that religious principles will take priority in determining what is an inherent requirement.

In any case, resolving this will ultimately require a ruling on doctrine.  A relevant theological question might be:  for a Christian, is teaching mathematics an act of worship? 

I am put in mind of a recent case in the UK where the Master of the Rolls, Lord Neuberger, ruled that requiring a Christian Islington registrar, Ms Lillian Ladele, to officiate at same-sex civil partnership registrations did not in any way interfere with her 'worship' as a Christian:  "the effect on Ms Ladele of implementing the policy [of requiring her to officiate at civil partnerships] did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished." Lord Neuberger decided that Ms Ladele's Christian view of marriage was "not a core part of her religion, and Islington's requirement in no way prevented her from worshipping as she wished."

The former Archbishop of Canterbury, Lord Carey, has objected to Lord Neuberger's 'disparaging' presumption that Ms Ladele's view on marriage was 'not a core part of her religion', and has asked that Lord Neuberger, together with other judges who hold similar views, excuse themselves from further cases to do with religious liberty.  It is extraordinary that a former Archbishop of Canterbury has lost confidence in some of Britain's most senior judges: the judges believe they are giving fair and impartial rulings, but prominent British church leaders believe they are irredeemably biased against Christians.

The theological issue which Lord Neuberger was addressing is what constitutes the 'core' of religious devotion: what determines the boundary between worship and the rest of life.  For a secular person, teaching mathematics has nothing to do with religion.  However, for a religious person – and indeed for a religious organisation – all actions can be considered to be worship.  What distinguishes many relgious organisations is that they see their whole activity as a corporate act of worship, done in devotion and service to God, in accordance with the doctrines and principles of their faith.  One reason they want to employ people of faith is that they want the whole organisation to corporately serve God through its activities. The secular judges regard faith as an essentially personal and individual affair, and cannot understand this perspective because their religious worldview cannot comprehend it.

This same theological issue was emphasized in a recent submission from the Standing Committee of General Synod of the Anglican Church of Australia, entitled 'Freedom of Religion and Belief in the 21st Century' submission.  The Anglican submission responded to a proposal made in the Australian report Article 18: Freedom of Religion and Belief that:
4.1.1. A distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job should not be unlawful. Preference in employment for a person holding a particular religious or other belief will not amount to discrimination if established to be a genuine occupational qualification. 
 In response, the Anglican submission stated:
In many religious contexts (including congregations, schools, missionary organisations and other charitable organisations), R.4.1.1 is not meaningful or relevant.  In these organisations there is no distinction between those positions where religious belief is a 'genuine occupational qualification', and other positions.  The attempt to make such a distinction is not meaningful because:
i. These organizations may seek to maintain their distinctively religious mission, and avoid loss of effectiveness, by employing people throughout the organisation who adhere to the religious purposes, and hold the religious beliefs, of the organisation.
ii. For Christian organisations, all action is done 'to the glory of God'.  This makes it impossible to distinguish between specifically religious activity and other activities.
Clearly the Victorian Labor government disagrees, for it has chosen to make rely upon the 'inherent requirements' distinction, which the Anglicans had declared to be 'not meaningful or relevant'.

I believe, without a shadow of doubt, that both the Victorian Civil and Administrative Tribunal, and higher courts of appeal will have great difficulty ruling on the three doctrinal questions which must be resolved in order to apply an 'inherent requirements' test.  Despite the Victorian Government's blasé confidence that actions which are 'justified' will be protected by the law, determining what is in fact 'justified' will require complex theological rulings to be made by secular courts.

I am particularly concerned about one specific implication of the new Bill in relation to employment.

This is that the concept of 'inherent requirement' is an all-or-nothing thing.  Either an attribute is an 'inherent requirement', in which case discrimination MUST be applied – for a person with the 'wrong' attribute(s) would by definition be unable to do the job, or it is not an inherent requirement, in which case discrimination will be forbidden.

This means an organisation must always discriminate or not at all.  What will be illegal will be to prefer Christians for positions in Christian organisations.

When I was a student at a Christian high school, I observed that the principal employed a considerable number of Christians to teaching positions.  Indeed the Physics teacher, English teacher and French teacher were all ordained ministers.  Under the new Victorian Equal Opportunity Law, if the principal wanted to discriminate in favour of a Christian teacher, the only way he or she could do this would be by declaring faith to be an 'inherent requirement' of the position.  But this would make it very difficult for the school to employ non-Christians, as they would not meet this 'inherent requirement'. The idea of maintaining a balance, where some, but not all, of the teachers are Christians, would be ruled out.

This outcome seems to be an extreme one, which is intolerant of the realities of how religious organisations actually function.  It will force a kind of ghettoization of religious institutions.  In order to maintain their religious identity, they will need to be 100% religious in their staffing practices, or have no religious employment preferences at all.

Clearly religious rights cannot simply trump all other rights.  Some religious practices are illegal and should always remain so. But what the past decade of watching Victoria's attempts to regulate religious manifestations has convinced me of – first through the lamentable outcome of the Racial and Religious Tolerance Act 2001, and now through the Equal Opportunity Bill 2010 – is that the Victorian Labor Government has little clue about the problems inherent in requiring our secular tribunals and courts to rule on doctrinal issues.  There is a desire that religious bodies and individuals be more accountable, but little clue about how to do this efficiently and effectively. 

In watching all this unfold, the weak response of churches to these threats to religious harmony has been, to say the least, disappointing.

If the Equal Opportunity Bill is as bad as I believe, then possibly the very best thing that can happen now is for a series of high profile Equal Opportunity cases to be started up, making use of the new religious provisions, which pit secularist-minded complainants against religious respondents.  The doctrinal issues will prove to be controversial and divisive, even within religious communities, and the public will be divided as the cases progress through the inevitable appeal processes.  The problem of conflicting and irreconcilable presuppositions about the role of religion in life will cause the government to founder on the shoals of controversy and outrage, as both sides discover that the law has not provided the legal clarity which everyone had hoped for.

I do hope I shall be proved wrong.