When advertising for a job vacancy, most employers will want to find the best candidate and fit for the organisation.
And often they will see the recruitment process as a way to filter out potentially unsuitable employees at the outset.
However, if this is done without careful consideration, you could be liable to a discrimination claim.
In 2014, Woolworths was found guilty of breaching Queensland’s anti-discrimination laws because of its online application form.
Mandatory fields meant that applicants could not progress with or submit their application unless they provided their age and gender.
Under Queensland’s state legislation, it is unlawful to ask a person to provide information that can be used for discriminatory purposes unless it is ‘reasonably required’ for a non-discriminatory purpose.
While Woolworths conceded that the mandatory fields on the form could be seen as discriminatory conduct, it argued that:
- the applicant’s age was necessary because some jobs could only be performed by people over the age of 18; and
- it required the applicant’s gender to comply with the Commonwealth’s workplace gender reporting requirements.
These arguments were rejected. The court held that the applicant’s age and gender were not reasonably required. The applicants could have simply been asked if they were at least 18 years old.
Woolworths was ordered to pay one jobseeker $5,000 in damages.
But discriminatory language isn’t just limited to obvious requests for a person’s age or gender. It can be more inadvertent.
For instance, if you advertised for a position using lines such as “recent graduate required”, “you must be a native Chinese speaker”, or “salesman wanted to join a young, energetic team” these could all be viewed as discriminatory and be in breach of anti-discrimination laws.
Throughout your recruitment process you must avoid any such action.
Below we outline 14 steps to ensure that your recruitment process is free from discrimination:
1. Develop a policy to help ensure all staff understand the requirements and legal obligations of the organisation in relation to discrimination. The policy should:
- state your commitment to treating people fairly and in accordance with anti-discrimination, spent conviction and privacy laws;
- briefly summarise employee and employer rights and responsibilities under these laws;
- outline other relevant legal requirements for the workplace, such as your responsibilities under licensing and registration laws, or working with children laws;
- explain the procedure for assessing the inherent requirements of the position;
- outline internal or external complaint or grievance procedures if someone thinks they have been unfairly treated; and
- designate officers with responsibility for different elements of the procedure.
2. Train your staff in the policy. This is particularly important for staff members who will be involved in recruitment.
3. Determine the inherent requirements of the role, e.g. the necessary tasks that will be performed.
4. Determine the selection criteria, and distinguish between essential and desirable criteria.
5. Identify a selection panel and include someone with a good understanding of the job. It is also a good idea to include both sexes and diverse backgrounds to give a wider perspective.
6. Prepare a job advertisement that addresses only the inherent role requirements and key selection criteria (read more). It is beneficial to have a proofreader check over the ad to ensure it is free from potentially discriminatory terms or references.
7. If an application form is used, avoid asking for personal information (e.g. date of birth), unless it is an inherent requirement of the role.
8. Select applicants to interview based on skills, abilities, qualifications and experience relevant to the role.
9. Create a plan of things you will ask during interviews and ensure you avoid references to personal characteristics.
10. Do not take or request photographs of applicants unless appearance is a genuine occupational requirement, e.g. for a modelling job.
11. Determine and assess pre-employment tests if they are necessary for the role (read more).
12. Only contact referees specified and authorised by the applicant, and only ask questions that relate to the selection criteria.
13. Select the successful applicant on the basis that they best meet the key criteria and are the best person for the job. Record the reasons for your decision.
14. Offer similar terms and conditions of employment for applicants of similar qualifications and experience undertaking the same role.