Educational institutions not exempt from anti-discrimination legislation
By Adelina Tama
In brief - Exclusion on grounds of sexual orientation found to be discrimination
In the case Cobaw Community Health Services v Christian Youth Camps Ltd, the Victorian Civil and Administrative Tribunal found on 12 October 2010 that Christian Youth Camps Ltd had discriminated against Cobaw Community Health Services by refusing to take a booking for accommodation because of the sexual orientation of the attendees.
Adventure resort refuses to take booking
Cobaw managed the WayOut Project, which is a state-wide youth suicide prevention project targeting same sex attracted young people. Christian Youth Camps (CYC) is connected with the Christian Brethren religion and provides accommodation and conference facilities at its adventure resort on Phillip Island.
Miss Hackney of WayOut called the adventure resort and spoke to Mr Rowe of CYC wishing to book the resort for a weekend forum for 60 young people from the WayOut project. Although the terms of the conversation were disputed, Miss Hackney considered that Mr Rowe had refused to take her booking for accommodation because of the sexual orientation of the attendees.
Allegation of discrimination on basis of sexual orientation
The relevant provisions of the Victorian Equal Opportunity Act prohibit a person from discriminating against another person by refusing to provide goods or services to the other person; by subjecting the other person to any other detriment in connection with the provision of services; or by failing to accept the other person's application for accommodation.
Cobaw alleged that CYC had discriminated against its young people by breaching each of those prohibitions. The Victorian Civil and Administrative Tribunal agreed. In short, it was found that Mr Rowe had discriminated against the young people on the basis of the attributes of "same sex" sexual orientation, or personal association with persons identified by their "same sex" sexual orientation.
Exceptions to anti-discrimination provisions
CYC argued that its conduct fell within the exceptions provided by the legislation. The Equal Opportunity Act relevantly exempted anything done by a body established for religious purposes that:
- conforms with the doctrine of the religion; or
- is necessary to avoid injury to the religious sensitivities of people of the religion.
The legislation also exempted discrimination by one person against another if it was necessary for the discriminating person to comply with that person's genuine religious beliefs or principles.
Freedom from discrimination and freedom of religious belief
Contrary to CYC's submission, the Tribunal approached the matter on the basis that the objects of the legislation required a narrow, and not a broad, large or liberal, interpretation of the exceptions. Parliament's intention was to strike a balance between the right to be free from discrimination, and the right to freedom of religious belief.
In construing the exceptions, the Tribunal stated that the right to freedom from discrimination must not be curtailed unless clearly manifested by unmistakable and unambiguous language.
Was CYC a body established for religious purposes?
The Tribunal answered this question in the negative. CYC could thus not rely on the relevant legislative exception.
The Tribunal relied upon the case OV & OW v Members of the Board of the Wesley Mission Council for the purpose of deciding when a body must be "established". In short, the test relates to the "relevant present", in the sense that the question "is whether it can properly be said of the body when the act occurred or the practice was followed that the acts or practices conformed to the doctrines being adhered to at that time, even if those doctrines have been changed or amplified or have evolved since the body was first established".
The Tribunal closely analysed CYC's activities and drew attention to the following matters:
- CYC's strategic planning document identified factors directed to giving it a sustainable, competitive market advantage. None of them were related to religion.
- CYC's advertising was directed to both secular and overtly religious, camping activities. Its home page made no reference to the Christian Brethren religion or to any overtly religious purpose of the resort. Similarly, the links from the resort's home page made no connection between the resort and the Christian Brethren religion. The same applied to its brochures, its email address and its web address.
- Much of CYC's activities was secular in nature. The resort operated as a commercial venture and CYC provided no religious input into camps run by church groups. CYC also provided no religious input and did not require any religious content or observance from school or other secular groups.
Purpose must be directly religious
The Tribunal then noted the following statement from a 1934 High Court decision:
"[It] is not enough that an activity or pursuit in itself secular is actuated or inspired by a religious motive or injunction: the purpose must involve the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it . . . whether divined widely or narrowly, the purposes must be directly and immediately religious. It is not enough that they arise out of or have a connection with a faith, a church or a denomination, or that they are considered to have a tendency beneficial to religion, or to a particular form of religion. . ."
As was said in another High Court decision in 1983:
"It does not follow that the common religion of a group stamps a religious character on an institution founded, maintained or staffed by members of that group or that the purpose or activity of such an institution is religious."
On the evidence, the Tribunal was not satisfied that the common religion of the members and directors of CYC, the requirement that they subscribe to a statement of faith, or the connection with the Christian Brethren religion was of itself sufficient to stamp a religious character on CYC, or of itself compelled a conclusion that the purpose of such an institution was religious.
What is the religion?
Applying the Wesley Mission decision, the Tribunal decided that there was no warrant for inferring that Parliament intended that the legislative exception should be limited in its operation to those doctrines common to all denominations of a particular religion, or to the religious sensitivities common to all adherents of a particular religion. The Tribunal accepted that the religion was the Christian Brethren religion.
What are the doctrines of the religion?
The Tribunal was presented with a divergence of evidence on this question. On the one hand, the doctrines of a religion were described by reference to the core architectural statements of faith (such as the Nicene Creed) which have been proclaimed by ecclesiastical authorities to be true.
On the other hand, CYC submitted that the concept of doctrine should be construed more broadly and could be constituted by or contained in any body or teachings such that it was not confined to the deep or fundamental architectural statements of Christianity. The Tribunal proceeded on the basis that "doctrine" refers to the core architectural statements of faith or the body of teachings that describes the fundamental shape of that form of religious belief.
The Tribunal on this basis accepted that the fundamental beliefs and doctrines of the Christian Brethren were set out in its 1971 Trust Deed. The Tribunal also accepted that those doctrines included the doctrine of plenary inspiration (meaning that the very words, and not just the ideas of the text of scriptures, are believed and acted upon).
Evidence was given and accepted that a belief that homosexuality was forbidden by scripture was not a part of the doctrine of plenary inspiration. CYC's relevant employees, however, regarded that doctrine as necessarily encompassing that belief. The Tribunal noted that it was not the doctrine itself, but rather the manner of its interpretation, which gave rise to those persons' belief about marriage, sexual relationship and homosexuality.
In circumstances where those beliefs were not incorporated in any statement of the essentials of Christianity by ecumenical councils or in any of the major historical formulations of the reformed or protestant doctrines, and that it was not dealt with directly in the statement of Christian Brethren doctrine in the 1921 Trust Deed, the Tribunal held that those beliefs did not constitute a doctrine of the Christian Brethren religion.
Meaning of "conforms with the doctrines of the religion"
The Tribunal found that there must be a causal connection between the act or practice and the doctrine. The concept of "conforming" imports a sense that the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in them acting in the way they did. The word carries a sense of requirement or obligation.
The question for the Tribunal was whether the refusal to take the booking conformed with the doctrine of plenary inspiration as it was being adhered to at the time. The Tribunal decided that the refusal did not conform with the doctrines of the Christian Brethren religion.
Was the refusal to take the booking necessary to avoid injury to the religious sensitivities of people of the religion?
The Tribunal commented that the relevant sensitivities must be those of the adherents of the religion, rather than the subjective sensitivities of one person. Religious sensitivities must involve something linked to, but different from, religious belief, or the doctrines of a religion.
Avoiding injury (in the sense of causing harm, rather than mere offence) to religious sensitivities must involve respect for, or not treating with disrespect, those matters intimately or closely connected with, or of real significance to, the beliefs or practices of the adherents of the religion.
To be "necessary" to avoid injury to such sensitivities, the action must be more than convenient or reasonable. It must be in the nature of indispensible, vital, essential, requisite, acting from compulsion, not free or involuntary. In other words, the injury which would be caused if the discriminatory conduct were not permitted must be significant and unavoidable.
The evidence established that it was not part of the doctrines, beliefs or practices of the Christian Brethren that they avoid contact with people who do not share their religious beliefs. Nor is it part of their doctrines or beliefs that they must avoid contact with same sex attracted people who do not share their religious beliefs. Nor is it a doctrine that they are required to openly express their disapproval of same sex attraction when in contact with same sex attracted people.
The evidence made it abundantly clear that CYC had not sought to prevent injury to their religious sensitivities by taking any steps to prevent people other than married couples who engaged in sexual activity from staying at the adventure resort or from engaging in sexual activity at the resort. CYC's conduct demonstrated that it was not necessary to avoid injury to the religious sensitivities of the Christian Brethren in respect of sex and marriage to refuse bookings to same sex attracted people or people who engaged in sexual activity outside marriage.
Exclusion of Cobaw group unjustified
If it was not necessary, in order to avoid injury to the religious sensitivities of the Christian Brethren, to exclude other same sex attracted people, or people who had or might, while at the resort, engage in sex outside marriage, then it was not necessary to exclude the WayOut group on that ground.
Accordingly, the Tribunal found that the refusal to take the booking was not necessary to avoid injury to the religious sensitivities of people in the Christian Brethren religion.
The Tribunal found that the complaint was made out. The statutory exceptions did not apply. CYC was ordered to pay compensation in the amount of $5,000.
Implications for other organisations with a religious basis
The case demonstrates that a body established with religious connections may not be established for religious purposes. In deciding whether it has been established for such a purpose, a Tribunal will review the body's constitution, the nature and extent of its activities (including its advertising and website material) and the linkage between those activities and the relevant doctrine. A strict interpretation of each statutory exemption will be applied.
If the exemptions are construed as being inapplicable, an educational institution would be liable for discriminatory conduct. This may be particularly relevant to educational institutions with a religious connection when considering, for example, applications for employment and student enrolment.
Any educational institution which has a concern as to whether or not its constitution or its acts or practices could give rise to an allegation of discriminatory conduct is invited to contact CBP Lawyers for definitive advice and assistance. This area of the law is a potential minefield for religious based schools. Forewarned is to be forearmed.