Discrimination against employees of religious schools in Australia, USA and the EU : a comparison in light of human rights and deliberative democracy

Should religious schools be allowed to discriminate against employees? While different legal systems offer varying answers to this question, the Australian federal regulation allows discrimination based on chosen attributes specified by the legislator. This solution has also been endorsed by the 2018 Religious Freedom Review. In the comparative context of the United States and the European Union, this article discusses three major options for regulating employment by religious schools: the solution in which the legislator foresees permissible grounds of discrimination (Australia), the model of broad exception for religious schools from discrimination laws (US) and the inherent requirements model (EU). I argue that both the theory of deliberative democracy and the requirements of human rights speak against the model of legislative specification of permissible discrimination grounds. Consecutively, I contend that international human rights support the preferability of the European inherent requirements model over the American model of general exception.