Discrimination occurs in the workplace when an employer takes adverse action against an employee or prospective employee because of a protected attribute such as sexual orientation.
That’s almost verbatim from Australia’s Fair Work Ombudsman’s guidelines for all employees’ right to protection from discrimination at work. Yet you still hear stories of Australians getting fired for being gay – or more accurately, being open about being gay. So is this actually legal in Australia? And if so, how?
Australia’s workplace laws make it illegal for employers to discriminate against employees for reasons like sex, marital status, political opinion or sexual orientation, with discrimination including actions like firing the employee, denying them their legal entitlements, changing their job to a disadvantage or treating them differently. However there’s one big ‘but’ under these protections.
“It’s not discrimination if the actions are taken against an employee of a religious institution to avoid harming the organisation’s religious beliefs,” the page clarifies, opening up a big loophole for a number of religiously affiliated workplaces who don’t want to employ certain kinds of people.
Beyond this, each state has its own laws allowing exemptions to religious bodies – mainly churches and religious schools – to discriminate based on their beliefs, with most allowing it at least to some extent. In almost all cases it’s a complicated situation to parse, however.
For example, in Victoria the Equal Opportunity Act 2010 allows religious bodies to discriminate on the basis of “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” if it “conforms with the doctrines, beliefs or principles of the religion; or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.” Note that this is a later amendment, however – the original act only exempted discrimination for people performing specifically religious functions in a religious organisation.
In NSW, Queensland and the ACT it’s explicitly legal for religious organisations to fire someone based on their sexuality. In WA and SA the laws are more complicated based on context, though there have been cases of gay teachers being fired from religious schools in WA before.
Even in Tasmania, which has the most protections of any state, the law still allows for some religious loopholes.
So is it legal to fire someone for being gay? If you’re affiliated with a religious organisation that decries homosexuality then yes, it can be – whether or not it should be.