Why you need to take religion seriously at work

Analysis

Why you need to take religion seriously at work

To what extent is “engaging” in religious activities at work allowable or acceptable? And what would constitute religious discrimination? Mike Toten explains.

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Controversy followed last week’s leaking of the Religious Freedom Review commissioned by the federal government.

The government received the review several months ago but has not yet publicly released it nor officially responded to it, although last week the Prime Minister commented on some of its recommendations and announced some changes – mainly related to education and in some cases peripherally to employment (eg in religious schools).
 
This article explains the current legal provisions relating to religious discrimination in employment.

What the law currently says


Most anti-discrimination laws in Australia make it unlawful to discriminate against employees on the ground of their lawful religious or political beliefs. This includes not holding any such beliefs. The definitions vary between each Act. For example, the Victorian Equal Opportunity Act 2010 defines the grounds of discrimination as the holding or not holding of any lawful religious or political belief or view, or the engagement or refusal/failure to engage in any lawful religious or political activities. On the other hand, there are no specific provisions in New South Wales.

Section 351 of the Commonwealth Fair Work Act 2009 makes it unlawful to take adverse action, including terminating employment, against an employee on the ground of his/her religion (as well as various other attributes). However, this provision may not apply if it is an inherent requirement of the job (see below), if it is not unlawful under anti-discrimination law in the same jurisdiction, or if it is in accordance with the doctrine, tenets or beliefs of the relevant religion and necessary to avoid injury to the religious susceptibilities of adherents of that religion.

When is “religious” behaviour inappropriate?


A contentious issue is: to what extent is “engaging” in religious activities at work allowable or acceptable?

“Passive” activities are clearly acceptable and should be allowed. These may include holding a devout belief, promoting it (but not in a belligerent way), wearing religious clothing at work (unless it breached another lawful and reasonable policy such as health and safety or legitimate corporate image), allowing short prayer breaks, bumper stickers on employees’ own cars, etc. All of these are OK provided that they are available to people of all different religions, not just selected ones.
 
A line may be crossed, however, if an employee engages in “religious activity” that can adversely affect other employees, such as attempting to “convert” them, or attacking or ridiculing them.

If you direct all employees not to impose their religious views on others while at work, and it is lawful and reasonable to do so (eg to avoid causing offence, harassment and disruption at the workplace, or to prevent employees from using employer resources for personal reasons), then an employee who steps over that line has arguably breached a lawful and reasonable employment-related directive or policy. Taking disciplinary action against the employee could be justified.

The basic test is how a “reasonable person” would react to an employee’s actions. Banning activities unlikely to offend such a person may amount to unlawful discrimination, either direct or indirect.

An exemption from legislation is available where conduct is reasonably necessary in order to comply with the doctrines, beliefs or principles of a religion. However, that would not include attempting to “convert” others.

What you can do


You can issue directives prohibiting the use of an employer’s time and resources (eg email and intranet) to express personal, religious or political views.  But it must be an across-the-board directive that applies to all such views, eg both religious and non-religious views. Singling out particular groups (eg one religion only) will amount to less favourable treatment of that group and will become unlawful discrimination. 

Some employees may argue that such a ban infringes their rights to freedom of religion or political views or freedom of expression. Such rights normally apply on the condition that exercising them does not infringe the rights and freedoms of other people, and it may help to point out to them that they themselves would be offended if someone forcefully expressed an opposing view to them.

Emphasise that no disrespect to any beliefs or the people who hold them is intended. You respect that beliefs that may be fundamentally important to some people’s existences, but they may be provocative or offensive to others if expressed in a forceful or otherwise inappropriate manner.

Accommodating employees’ religious preferences 


You are not obligated to agree to every request or demand made by job applicants or employees, but you must consider it seriously and with an open mind. Inherent requirements of the job or compelling business needs (such as a requirement to work weekends because that is the peak time for the business) can outweigh the disadvantage to the employee of refusing a request.

You cannot contrive a job requirement that is not genuine, as this may amount to indirect discrimination on the ground of religion, even if the latter was unintentional.

Review recommendations that may affect employment


The Religious Freedom Review contains 20 recommendations.

The following are those relevant to employment.
  • Either amend the Commonwealth Racial Discrimination Act 1975 or enact a new Religious Discrimination Act to make it unlawful to discriminate on the basis of religious belief or activity, including not holding any religious belief. 
  • New South Wales and South Australia should amend their anti-discrimination laws to make it unlawful to discriminate on the basis of religious belief or activity, including not holding any religious belief.
  • Current employment-related exemptions from anti-discrimination legislation for religious schools on the basis of race, disability, pregnancy or intersex status should be abolished. Any exemptions allowing discrimination against a current employee solely on the basis that he/she entered into a marriage should also be abolished.
  • Anti-discrimination laws that retain exemptions for religious bodies relating to race, disability, pregnancy or intersex status should be reviewed, “having regard to community expectations”. 
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