Religious Discrimination At Work: How To Handle It In Australia

What Religious Discrimination Is

Religious discrimination is treating a worker less favourably because of their religion or religious belief, or applying a rule that disadvantages people of a particular faith without good reason.

Religious discrimination covers holding a religion and holding none.

An atheist refused a role because the owner wanted “someone who shares our values” has the same complaint as a Muslim worker refused a role because of their hijab.

Religious discrimination takes two shapes, and the second is the one organisations miss.

• Direct religious discrimination: Treating someone worse because of their faith. Not hiring, not promoting, rostering them badly, or dismissing them for it.
• Indirect religious discrimination: Applying the same rule to everyone, where the rule disadvantages one faith and cannot be justified. A blanket no-headwear policy in an office with no safety rationale is the standard example.

Religious harassment sits alongside both: conduct directed at a worker because of their faith that a reasonable person would expect to offend, humiliate or intimidate.

The Gap: There Is No Federal Religious Discrimination Act

Australia has four federal discrimination Acts, covering race, sex, disability and age. Religion is not one of them, so there is no single statute a religious discrimination claim is built on.

Successive governments have attempted to legislate religious discrimination protections over the past decade and none has been enacted.

The Australian Human Rights Commission describes the existing protections as incomplete, and has identified introducing such laws as a priority.

This matters practically, not just constitutionally. An employer who writes a policy listing “the four federal discrimination Acts” has written a policy that does not cover religious discrimination at all.

A worker who goes looking for the Religious Discrimination Act will not find one, and may conclude they have no rights. Both conclusions are wrong, and both are common.

Which Laws Actually Protect Religion at Work

Read the right-hand column, because it decides how a religious discrimination complaint actually ends.

Three of those four routes end somewhere binding. One does not, and it is the one most workers instinctively reach for.

The Complaint Route With Teeth, and the One Without

The Australian Human Rights Commission can accept complaints of discrimination in employment on the ground of religion, alongside criminal record, trade union activity, sexual preference, political opinion and social origin.

These come through the Commission’s international labour convention jurisdiction rather than through a discrimination Act.

That jurisdiction works differently, and the difference is not a technicality.

The Commission investigates and attempts conciliation. If the matter does not resolve and the President forms the view that discrimination occurred, the President may report the matter to the federal Attorney-General.

There the process ends. Unlike complaints under the Racial, Sex, Disability and Age Discrimination Acts, an individual cannot take a religion complaint to court if conciliation fails, and the Commission’s recommendations are not binding.

The practical consequence for anyone running a religious discrimination complaint is straightforward.

Where a worker has been dismissed, demoted, refused a role or otherwise had adverse action taken against them because of religion, the Fair Work general protections route is the one with a remedy attached.

Where the conduct is harassment creating psychological risk, the WHS regulator has enforcement powers.

Where the state or territory covers religion, that tribunal can make orders.

For employers this cuts both ways. It does not make a Commission complaint safe to ignore, because the same facts usually support a general protections application as well, and that one carries a reverse onus: once a worker alleges adverse action for a prohibited reason, the employer has to prove the reason was something else.

State and Territory Protection: A Patchwork

Protection against religious discrimination exists in most Australian jurisdictions and is narrower in two.

This is the position as set out in the Australian Human Rights Commission’s guide to the protections for freedom of religion.

State and territory anti-discrimination law is amended more often than federal law, and reform in this area has been under active discussion for years.

Confirm the current position in your own jurisdiction before you rely on it, particularly in New South Wales and South Australia.

For a national employer the practical answer is to set one standard across the business rather than run to the floor of whichever jurisdiction is weakest.

A policy that protects religion everywhere is simpler to administer, and the Fair Work general protections apply nationally regardless of what your state law says.

What Religious Discrimination Looks Like at Work

Religious discrimination is rarely announced. It shows up in four places, and the last one causes more of it than the first three combined.

In Recruitment and Progression

• Screening out names, schools or community affiliations associated with a faith
• Questions about religious observance in interviews, including indirect ones about weekend availability aimed at one candidate
• Passing someone over because of an assumption they will need time off, or will not fit the team

In Rostering and Conditions

• Refusing leave for religious observance while granting comparable leave for other reasons
• Scheduling mandatory meetings or training on a known day of observance without checking
• Appearance or uniform rules with no safety rationale that exclude religious dress or grooming
• Work social events built entirely around alcohol, with attendance treated as commitment

In Conduct

• Jokes, mockery or stereotypes about a faith, including about people who have none
• Comments tying a worker’s religion to extremism, backwardness or divided loyalty
• Pressure to participate in religious observance, or to abandon it
• Removing or interfering with religious items or dress

In Assumptions

• Treating a worker as a spokesperson for their whole faith community
• Assuming what a worker can eat, wear, touch, or when they can work, rather than asking
• Deciding for someone that they would not want a role, a client or a trip

Religious Harassment and Your Safety Duty

Where religious discrimination takes the form of conduct rather than decisions, a second duty applies to it regardless of which discrimination law covers you.

Safe Work Australia names bullying, harassment, discrimination, aggression and violence among the psychosocial hazards a person conducting a business or undertaking must manage.

That duty is national, it does not depend on the attribute, and it applies in New South Wales and South Australia exactly as it applies everywhere else.

This is the answer to the religious discrimination gap between jurisdictions.

An employer in a state with narrow religious discrimination protection still has a work health and safety obligation to control the psychosocial risk that religious harassment creates.

Our guide to psychosocial risk management covers how to run it as a registered hazard, and discriminatory harassment covers the conduct side across all attributes.

Accommodating Religious Practice

Australian religious discrimination law contains no general statutory duty to accommodate religious practice at work, of the kind that exists in United States law.

That is a real difference and it is worth stating plainly, because a great deal of the guidance circulating online assumes otherwise.

What Australian law does instead is test whether a rule that disadvantages a religious group is reasonable.

Indirect discrimination provisions in the jurisdictions that cover religion ask whether the condition imposed was reasonable in the circumstances.

A uniform policy backed by a genuine safety requirement usually is. The same policy applied to an office worker because “it looks smarter” usually is not.

The distinction between what the law requires and what good practice suggests matters here, so treat the following as the second rather than the first:

• Ask rather than assume. Most religious accommodation requests are small and cost nothing.
• Handle prayer, fasting, observance days and dress through your existing flexibility and leave arrangements rather than a separate process.
• Where you decline a request, record the operational reason. That record is what makes the condition defensible if it is challenged as indirect religious discrimination.
• Apply the same standard to everyone. Granting a Friday afternoon for one purpose and refusing it for another is where claims come from.
• Watch catering, venue and timing choices for events where attendance affects a worker’s standing.

Religious exemptions for religious bodies and religious educational institutions are a separate and contested area, with their own provisions in each jurisdiction.

If your organisation is one, take specific advice rather than relying on general guidance.

Where Employers Get This Wrong

• Assuming there is nothing to comply with: No federal Act is read as no obligation. The Fair Work route alone disproves that.
• Copying American policy language: Policies that reference Title VII, the EEOC or a reasonable accommodation duty describe obligations that do not exist here and omit the ones that do.
• Listing only the four federal Acts in the policy: This silently excludes religion, political opinion, carer’s responsibilities and more.
• Treating observance requests as favours: A discretionary approach applied inconsistently is how most indirect religious discrimination is built.
• Missing religious discrimination because no decision was made: Religious mockery with no employment consequence attached is still a psychosocial hazard and still your problem.
• Relying on the state position without checking: Particularly in New South Wales and South Australia, where cover is narrower and reform has been under discussion.

How to Handle a Religious Discrimination Complaint

1. Take it seriously without debating theology: You do not need to assess whether a belief is orthodox, mainstream or correct. The question is how the worker was treated.
2. Separate the decision from the conduct: Was a decision made that disadvantaged them, or was this harassment, or both? They travel through different routes.
3. Identify the rule, if there is one: For indirect religious discrimination, find the policy or practice involved and ask what operational reason supports it.
4. Move the respondent, not the complainant, if separation is needed while you investigate.
5. Investigate impartially, with someone who has no stake, allegations put to the respondent, and a decision on the balance of probabilities.
6. Watch for adverse action after the complaint: Under the general protections, taking adverse action because someone exercised a workplace right is itself unlawful, and it carries the same reverse onus.
7. Fix the rule as well as the incident: If a uniform, roster or leave practice caused it, the practice is the control.
8. Record everything: Under the general protections you may have to prove your reason was not religion, and contemporaneous records are how that is done.

Workers have external options and should not be discouraged from using them: the Fair Work Commission for a general protections application, their state or territory anti-discrimination body where religion is covered, the Australian Human Rights Commission, and their WHS regulator.

Time limits are short for general protections matters involving dismissal, so early advice from a union, a community legal centre or a lawyer matters.

A Religious Discrimination Prevention Checklist

• Your behaviour policy names religion as a protected attribute, not just “discrimination”
• The policy does not reference the EEOC, Title VII or any United States law
• Uniform, appearance and grooming rules have a recorded operational or safety reason
• Leave and flexibility arrangements can absorb observance requests without a special process
• Interview questions are consistent and do not probe availability in a way that surfaces faith
• Managers know not to assume what a worker can eat, wear, touch or when they can work
• Work events are not built so that non-drinkers or observant workers must opt out
• Religious harassment is on your psychosocial risk register with the other conduct hazards
• You know whether your state or territory covers religion, and you have checked recently
• Declined requests are recorded with the reason
• All workers have completed EEO or respect at work training and you hold the records

Where to Start

Open your discrimination or behaviour policy and search it for the word religion.

If it is not there, or if the policy lists only the four federal Acts, you have found the gap in about ten seconds.

Then search the same document for EEOC and Title VII. If either appears, the policy was built from American source material and needs more than a patch.

Frequently Asked Questions

1. Is Religious Discrimination Illegal in Australia?

Yes, though not under a federal Religious Discrimination Act, because none exists. Religion is protected by the general protections in the Fair Work Act, by most state and territory anti-discrimination laws, and by the Australian Human Rights Commission Act. Religious harassment also engages your work health and safety duty.

2. Is There a Federal Religious Discrimination Act?

No. Successive governments have attempted to legislate one over the past decade and none has been enacted. The Australian Human Rights Commission describes the current protections as incomplete and has identified introducing such laws as a priority.

3. Where Should a Worker Complain About Religious Discrimination?

It depends on what happened. Where adverse action was taken because of religion, the Fair Work Commission general protections route is the one with enforceable remedies. Where the state or territory covers religion, its anti-discrimination body can hear it. The Australian Human Rights Commission can conciliate, but that jurisdiction has no court pathway. Complaints go to Australian bodies, not to the United States EEOC.

4. Why Can’t a Religion Complaint to the Human Rights Commission Go to Court?

Because religion is covered under the Commission’s international labour convention jurisdiction rather than under one of the four federal discrimination Acts. The Commission investigates and conciliates, and where it forms the view that discrimination occurred the President may report the matter to the Attorney-General. The recommendations are not binding and an individual cannot take the matter to court if conciliation fails.

5. Do Australian Employers Have to Accommodate Religious Practice?

There is no general statutory duty to accommodate religious practice of the kind found in United States law. What applies instead is indirect discrimination: in jurisdictions covering religion, a rule that disadvantages a religious group must be reasonable in the circumstances. Recording the operational reason for a rule or a refusal is what makes it defensible.

6. Which States Protect Religious Belief?

Anti-discrimination law in the ACT, Northern Territory, Queensland, Tasmania, Victoria and Western Australia covers religion or religious belief. New South Wales is narrower, covering ethno-religious origin, and South Australia’s protection concerns religious dress in employment and education. This area is subject to reform, so confirm the current position in your jurisdiction.

7. Can an Employer Ask About a Worker’s Religion?

Asking about religion in recruitment is risky and rarely necessary. If you need to know about availability, ask every candidate about availability directly rather than asking about faith or asking one candidate about weekends. Where a worker raises an observance need themselves, asking practical questions to accommodate it is fine.

8. Is Mocking Someone’s Religion a Sackable Offence?

It can be. Religious mockery is harassment, it can be religious discrimination, and it is a psychosocial hazard you have a duty to control. Whether dismissal is the right response depends on severity, history and your own process, but treating it as banter is not an option available to an employer who wants a defensible position.

Read More About Workplace Discrimination:

• How to identify, prevent and respond to discriminatory harassment in the workplace
• How to deal with discrimination in the workplace as an employer
• How to deal with racial discrimination in the workplace
• What is age discrimination in the workplace
• Principles of equal employment opportunity every employer should know
• Psychosocial risk management: treating mental health risks like any other workplace risk