Exceptions

Discrimination will be not be against the law if it is necessary to comply with an order of a court or tribunal, or is authorised by legislation. 

Religious bodies and schools are not allowed to discriminate against people based on the personal characteristics of sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity in:  

• employment decisions  

• decisions about school students  

However, they can discriminate based on religious beliefs, in limited circumstances, if the discrimination is reasonable and proportionate. 

When providing goods or services funded by the Victorian Government, religious bodies can only discriminate based on a person’s religious belief. They will not be able to discriminate based on other personal characteristics.  

Read our Factsheet: Religious exceptions reform – Equal Opportunity Act 2010 for more information about the changes to anti-discrimination laws including discrimination based on religious beliefs (i.e. what will not change), the positive duty (which applies to religious organisations and bodies who are duty holders under the Equal Opportunity Act) and frequently asked questions.

Discrimination because of disability, pregnancy or physical features will not be against the law where it is necessary to protect the health and safety of any person, including the person being discriminated against. 

This exception also applies to discrimination because of disability or physical features where it is necessary to protect property. 

A person can also discriminate by offering special services, benefits or facilities to meet the special needs of people with a particular personal characteristic. For example, a support group for single fathers can limit participation in the group to single fathers, or a holiday tour company can offer services for 18–30 year olds and restrict the participation of younger or older people. 

In some instances it is not against the law to provide targeted services when they are established wholly or mainly for the welfare of people of a particular sex, age, race or religious belief. This could include emergency accommodation for women.

There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate in particular circumstances. For example:

Clubs for people with particular characteristics

Certain kinds of clubs are permitted to restrict their membership or to provide different benefits to people with particular characteristics protected by the law. For example, some clubs may provide benefits for members of particular age groups or a single sex.

Clubs for minority groups

Some clubs may be set up specifically to preserve a minority culture, or for a political belief or activity. These kinds of clubs may exclude people who are not members of the minority culture or political belief or activity.

Clubs that limit access to benefits

Some clubs may be set up to provide benefits for people in a particular group or request that different groups have access to facilities at different times. Under reasonable circumstances, these kinds of clubs may restrict benefits to people in a particular group.

These limitations can only be made under reasonable circumstances.

In education there are a number of exceptions where behaviour will not seen as discriminatory.

Programs for specific education needs

Schools and other education providers may run programs entirely or mainly for students of a particular sex, race, religious belief or age group, or for students with a disability.

This helps schools target the learning needs of specific groups.

If adjustments are not reasonable

An educational provider is required to make reasonable adjustments for a person so they may participate in a course or program, unless:

• the required changes would be significantly costly
• the required changes are unfeasibly difficult to achieve
• the student with the disability could not participate in education even if the changes were made, or
• where they already comply with, or have been exempted from, the federal Education Standards.

Dress, appearance and behaviour standards

Schools, colleges and other education providers may set and enforce reasonable standards of dress, appearance and behaviour for students.

To be considered ‘reasonable’ the standards must take the views of the school community into account. The school community would include students, staff, parents, and members of school committees and councils.

Age-based schemes

Education providers can select students for educational programs based on their age. It is not discriminatory for schools to:

• have a minimum age. For example, a child must be five years old to start school
• set specific regulations for students of different ages or age groups.

This exception enables education providers to cater for the different developmental and learning needs of students of different ages.

Unreasonable adjustments for disability

An employer is required to make reasonable adjustments for a person with a disability if adjustments are needed for the person to perform the requirements of the job.

However, an employer could refuse to make adjustments if the person with disability could not perform the genuine requirements of the job even after the adjustments were made.

Protection of children

Discrimination in employment is permitted if it is necessary in the care, instruction and supervision of children to protect their physical, psychological or emotional wellbeing.

Home-based services

An employer may discriminate when hiring someone to provide domestic or personal services within their own home, or at the request of the person whose home it is.

Welfare services

When an employer is providing welfare services that are special measures or that meet the needs of people with a particular characteristic, they may discriminate to select employees that best meet the needs of the clients.

For example, a support service for women who have experienced family violence may want to ensure that the counsellors it employs are female.

Occupations that require specific characteristics

Some occupations may have a genuine requirement for an employee with a particular characteristic. In these cases, discrimination is not against the law. For example where an employer requires an employee:

• of a particular sex. For example, to fit clothes or conduct body searches
• with particular characteristics to ensure the authenticity or credibility of a dramatic or artistic performance, entertainment, photographic or modelling work
• with a particular political belief or activity to provide ministerial advice or to join the staff of a political party or politician.

Age-related benefits

Sometimes employment conditions or benefits are linked to a particular age. In these cases, discrimination is not against the law. For example:

• paying an employee under 21 years of age according to their age
• a superannuation fund setting the minimum age a person can receive their superannuation benefits.

The Act includes specific exceptions in goods and services provision where discrimination may be permitted.

Exceptions in insurance

It is not against the law for an insurer to make discriminatory decisions about the cost of insurance or other risks when insuring a particular person or group of people. However, these decisions must be based on an analysis of statistical data or other relevant factors, and must be reasonable in the circumstances.

This exception covers annuities, life assurance, accident insurance and illness insurance.

Exceptions in banking

It is not against the law for a bank to discriminate on the basis of age when deciding who it will provide credit to (such as a loan, credit card or mortgage) and the terms on which it will provide credit. However, these decisions must be based on calculations of risk or statistical data and any other data that is reasonable for the credit provider to use.

The Act includes an exception to selling or transferring land, which means that it is not against the law for someone to discriminate against another person if they dispose of land by will or as a gift.

There are specific exceptions that apply to local government, which permit a councillor to discriminate on the basis of political belief or activity in the performance of their public functions.

The Act also includes specific exceptions in relation to competitive sporting activities.

Under the Act, you can restrict participation to people with a particular personal characteristic in the following situations:

• restricting participation to those who can effectively compete. For example, if someone has an injury that prevents them from playing tennis
• restricting participation to those in a specific age group. For example, a 15 and under soccer team
• restricting participation to those with a general or specific disability. For example, a basketball team for people with paraplegia.

Restricting on the basis of sex or gender identity

Restricting participation on the basis of sex or gender identity for competitors over the age of 12 is not unlawful discrimination if:

• it’s for a competitive sporting activity where the strength, stamina or physique of competitors is relevant to the specific activity. For example, a man being excluded from a women’s-only marathon
• participating in the activity is necessary and the only way for a competitor to progress to an elite level competition, and the exclusion will allow participants to progress to national or international elite level competition. For example, a selector for a national men’s team selects athletes based on their performance in the state men’s team. If the state only has a unisex team, then men would not be able to progress.
• the exclusion or restriction aims to help people of a particular sex to participate in the activity. For example, creating a women-only soccer team after the applicants for the members of the mixed team have only been from men.

There are some exceptions in the law when it comes to age discrimination:

• hiring a person of a particular age when the person will be providing domestic or personal services in a person’s home
• hiring a person of a particular age for an acting role in which the character is a particular age
• paying an employee who is under the age of 21 years according to the employee’s age
• a firm promoting the hiring of older workers after discovering that older workers face significant disadvantages in being hired
• not selling alcohol or cigarettes to someone under 18
• a cinema selling discounted tickets to people over 65
• a basketball team only for players aged 19 and under.

Discrimination is not against the law if there is a real risk to someone’s health, safety or property.

Discrimination is not against the law if there is a real risk to someone’s health, safety or property.

Positive steps can also be taken to help disadvantaged groups using special measures, which is not discrimination under the law.

Exemptions to reasonable adjustments

There are no specific rules about what is or isn’t a reasonable adjustment as it depends on the situation. However, an adjustment is likely to be unreasonable if:

• it has a very high cost
• it will cause great disruption in the workplace

In some cases an employer can lawfully decide not to make the requested adjustments, if:

• the adjustments needed are not considered reasonable in their situation
• the person with the disability could not perform the genuine and reasonable requirements of the job even if the adjustments were made.

Religious exceptions

Religious bodies and schools can discriminate on the basis of several personal characteristics, including gender identity, lawful sexual activity and sexual orientation in circumstances where such discrimination is required to conform with religious belief or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of followers of the religion.

Sport exceptions

The Act also includes exceptions that apply to competitive sporting activities. It is not against the law to discriminate against a person because of their gender identity when it relates to competitive standards, that is, a competitive sporting activity in which the strength, stamina or physique of the competitors is relevant.

Religious exceptions

Religious bodies and religious schools can discriminate on the basis of a person’s marital status where the discrimination conforms to the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of people who follow the religion.

Religious bodies and religious schools can also allow a person to discriminate against another person on the grounds of the person’s marital status if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

There are also specific exceptions where discrimination because of physical features may be permitted. For example:

• a company only hiring individuals who are strong enough to lift heavy packages safely
• a photographer requesting that their models be above a certain height and of a specific look
• a horse-riding association requiring jockeys to be under a certain weight.

An employer may discriminate against a woman based on pregnancy when it is reasonably necessary in order to protect her health and safety or the safety of others. The measures taken must be reasonable and a proportionate response to the risk posed to health and safety.

Discriminatory measures should only be taken where there is a real likelihood of risk to health and safety. Employers who choose to discriminate on this basis should also consider any less discriminatory ways to achieve the desired outcome.

The option to breastfeed at work will be determined by the sort of work you do. In some circumstances it may not be reasonable to breastfeed in the workplace due to health or safety.

For more information and further assistance, contact the Australian Breastfeeding Association.

There is a specific exception where discrimination because of profession, trade or occupation may be permitted for genuine occupational requirements.

For example:

It may be a genuine occupational requirement for a teaching position that the candidate have experience and relevant qualifications as a teacher. Therefore, overlooking a candidate who doesn’t have experience as a teacher will not be discrimination.

Discrimination that favours a particular race may be permitted if it is done to better meet the specific needs of people belonging to that race, such as welfare services targeted at a particular group. For example, a health service for Aboriginal Victorians may employ Aboriginal staff members in particular roles. 

It is also lawful to offer employment to a person of a particular race if there is a need to maintain authenticity or credibility in dramatic, artistic, entertainment, photographic or modelling performance, or similar work. 

An educational authority may operate a school or program for students of a particular sex, race or religion. Students who are not of that race, sex or religion may not be eligible for admission to the institution or program. 

There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate in particular circumstances. For example: 

• positive steps can also be taken to help disadvantaged groups, such as creating designated roles for people of a particular religion, which is not discrimination under the law 

• religious bodies and schools can discriminate on the basis of several personal characteristics, including religious belief or activity, in particular circumstances. Discrimination is allowed when it is needed to respect religious beliefs or principles of the religion, or is reasonably necessary to avoid offending or harming the beliefs of the followers of the religion. 

Discrimination may also be permitted when: 

• ordaining or appointing priests, ministers of religion or members of a religious order 

• training or educating people who wish to be ordained as priests, ministers of religion or members of a religious order 

• selecting or appointing people to perform or participate in a religious activity, observance or practice. 

There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate in particular circumstances. For example:

• an all-boys religious school won’t allow girls to enrol
• hiring a male support worker to provide physical assistance to a male student with a disability
• hiring only female staff members to work in a family violence refuge for women and their children
• specifying the sex of models wanted for an artistic or dramatic work.

Restricting participation in sport on the basis of sex or gender identity for competitors over the age of 12 is not unlawful discrimination if:

• it’s for a competitive sporting activity where the strength, stamina or physique of competitors is relevant to the specific activity. For example, a man being excluded from a women’s-only marathon
• participating in the activity is necessary and the only way for a competitor to progress to an elite level competition, and the exclusion will allow participants to progress to national or international elite level competition. For example, a selector for a national men’s team selects athletes based on their performance in the state men’s team. If the state only has a unisex team, then men would not be able to progress.
• the exclusion or restriction aims to help people of a particular sex to participate in the activity. For example, creating a women-only soccer team after the applicants for the members of the mixed team have only been from men.

In some instances it is not against the law to provide targeted services when they are established wholly or mainly for the welfare of people of a particular sex, age, race or religious belief. This could include legal services provided to women for family violence related proceedings.