Under health and safety legislation throughout Australia, all employers have a duty to protect the health, safety and welfare of their workers.
This includes taking appropriate measures to ensure employees aren’t discriminated against, even at the recruitment stage.
When hiring staff, anti-discrimination laws apply when you are:
- advertising jobs;
- requesting information from candidates;
- shortlisting and interviewing candidates; and
- testing candidates.
It is unlawful to treat applicants less favourably because they possess one or more of the following protected attributes:
- sex or gender identity;
- disability or impairment;
- criminal record;
- religious or political belief or activity;
- parental status; or
- sexuality or sexual orientation.
In 2014, Woolworths lost a legal claim for breaching Queensland’s anti-discrimination laws.
Mandatory fields in the company’s online application process meant that prospective employees were unable to apply for a position unless they provided their age and gender.
Under Queensland legislation, a person cannot be asked to provide information that may be used for discriminatory purposes unless it is ‘reasonably required’ for a non-discriminatory purpose.
While Woolworths conceded its mandatory fields could amount to discriminatory conduct, the company argued:
- 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.
The Tribunal rejected these arguments and held that an applicant’s age and gender were not reasonably required and they could have simply been asked if they were over 18.
Woolworths was ordered to pay the jobseeker who raised the claim $5,000 in damages.
3 tips to avoid discrimination when recruiting:
- Ensure your job advertisement is legally compliant Never state, or even imply that the job is restricted to or doesn’t include people with certain personal attributes. Don’t use language associated with any protected attribute (e.g. – age or gender).
- Try using ‘blind CVs’ to select candidates for interviewHave a third party not involved in the recruitment process remove personal information (names, birthdates, postcodes, etc.) from the CVs before you review them. Select candidates exclusively on the basis of their skills, experience and qualifications.
- When interviewing, avoid questions about protected attributesEven questions indirectly relating to a protected attribute could be seen as a request for information that may be used to unlawfully discriminate against the candidate. If necessary, use a script to maintain consistency and fairness between each interviewee.
Under federal legislation you are allowed to ask candidates about protected attributes if the information is needed to comply with workplace health and safety standards, however any staff responsible for selection and hiring must be properly trained and fully aware of anti-discrimination laws and guidelines.
Even if you use an employment agency, it is still your responsibility to make sure applicants aren’t unlawfully discriminated against during the recruitment process. Be certain that any agency involved is complying with equal opportunity practices and uses non-discriminatory selection methods.
If candidates are required to take a pre-employment test, ensure that the test relates specifically to the job criteria and performance requirements of the job being applied for.