R1 Recruitment

Step-by-Step: Avoiding discrimination when recruiting

Follow these steps during the recruitment process to ensure you don’t discriminate against prospective employees:

Step 1: Determine the inherent requirements of the job

The inherent requirement may include:

skills; knowledge; experience; tasks; and formal qualifications.

Important: Ensure that no unnecessarily restrictive English language qualifications are put on jobs that do not require them. This extends to asking candidates to submit a comprehensive written statement on why they want the job when high-level English skills are not necessary in the position.

This depends on the nature of the job, e.g. specifying this requirement for a cleaning job that could easily be learnt by watching others, and completed with basic English, would unnecessarily disadvantage a person whose first language isn’t English.

Step 2: Write any advertisement so that it doesn’t state, or even imply, that the job is restricted to people on the basis of a personal attribute

It is unlawful to publish or display an advertisement that unlawfully discriminates, whether it be on the internet, on television or radio, or in newspapers or other printed mediums.

In your advertisement, you should:

not make references to individual attributes that are not relevant to the position; be specific, e.g. does ‘communication skills’ refer to talking on the phone to customers, writing

reports for management, instructing technical operators, intercultural skills or teamwork; and only address key criteria.

Tip: Avoid language that relates to specific attributes, e.g. age or gender. For example:

instead of using ‘barmaid’, use ‘bar attendant’; instead of using ‘tradesman’, use ‘tradesperson’; instead of using ‘office junior’, use ‘junior-level office assistant’; and instead of using ‘3 years’ experience’, use ‘demonstrated experience’.

Remember: The terms ‘junior’, ‘senior’ or ‘mature’ can be used in the context of stating the role’s level, but not in relation to a person. Check legislation carefully to avoid any discriminatory practices in job advertising.

Case Law

In Australian Catholic University (2011), Fair Work Australia observed that a job advertisement containing a requirement that applicants be more than 180 centimetres tall may be discriminatory against many women and members of particular racial groups.

Tip: Include a diversity statement in the job description that encourages people from different backgrounds to apply, including Aboriginal and Torres Strait Islanders, people from culturally and linguistically diverse backgrounds and people with a disability.

Step 3: Ensure you do not request information from a candidate that is not relevant to the role

Only request candidates provide you with information that you need to assess their suitability for the role.

Avoid asking for personal information (such as date of birth) unless it is an inherent requirement of the role. Personal and sensitive information can trigger personal bias, resulting in discriminatory assessment and a breach of privacy laws.

Case Law

In Willmott v Woolworths Ltd (2014), the employer breached Queensland’s anti-discrimination laws by forcing prospective employees to provide their date of birth and gender.

The Anti-Discrimination Act 1991 (Qld) prohibits discrimination on the grounds of age, sex and gender identity (among other things). The legislation states that a person cannot be asked to provide information that may be used for discriminatory purposes. However, the request will not amount to discrimination if the information is ‘reasonably required’ for a non-discriminatory purpose.

The employer argued that mandatory fields in its online job application form requiring age and gender 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 by the Tribunal, which held that an applicant’s age and gender were not reasonably required. The employer could have simply asked whether the applicant was over 18 and determined gender by taking a ‘reasonable estimate’ based on names.

Do not ask for information:

from people who have a protected attribute, but not from people who do not have the protected attribute; or

plan to use that information to unlawfully discriminate against them.

Do not request or take photographs of applicants (unless appearance is a genuine occupational requirement, e.g. for modelling). It can have the same effect as asking someone’s age, race or sex.

Tip: Under anti-discrimination legislation, you may take photos of an employee who has been accepted for employment.

Important: Requests for information that could be used to discriminate against a person on the basis of a protected attribute are prohibited unless the information is requested for non-discriminatory purposes.

The following table shows when information about protected attributes could be required for a lawful purpose:

Attribute When is it lawful to ask about the attribute?Disability To determine what (if any) reasonable adjustments

the employer would need to make to enable the person to adequately perform the genuine and reasonable requirements of the job.

Political beliefs or activity When offering employment in a political environment, e.g. as a ministerial adviser, electorate assistant or in a political party.

Sex When offering employment in a role providing domestic or personal services at a person’s home. When offering employment in a role requiring particular physical characteristics (other than strength or stamina) only possessed by men, e.g. in modelling. To preserve decency or privacy because it involves the fitting of clothing for people of that sex.

Age To determine whether they would be entitled to youth wages when employed.

Important: Under federal anti-discrimination legislation, you can ask a candidate for information relating to a protected attribute if that information will help you to comply with health and safety standards or be used to make changes to your workplace.

For example, you may ask a candidate if they are pregnant or intend to become pregnant if the job poses a risk to a pregnant employee or a foetus and you would need to make adjustments to remove this risk.

Tip: When offering employment in a role requiring a dramatic or artistic performance, entertainment, photographic or modelling work, you may be able to ask a candidate about their personal attributes (e.g. their age, sex, race or disability) if it is necessary to do so for reasons of authenticity or credibility.

Even if you can show that information is required for a lawful purpose, you must:

not directly or indirectly disclose the information to any person unless it is necessary to do so for a purpose that does not involve prohibited discrimination; and

destroy or permanently abolish the information from the person’s records when it is no longer required for the non-discriminatory purpose.

Step 4: Be careful when sourcing information about job applicants from third parties

Any information obtained from social media and used by prospective employers in assessing candidates must be directly relevant to the job requirements.

Anti-discrimination laws restrict your use of social media to obtain information about candidates. For example, if the information contained on a Facebook or Twitter page is linked to a protected attribute under any anti-discrimination law, such as an involvement in a political or religious group, then rejecting the candidate may lead to a discrimination or general protections complaint.

Step 5: When shortlisting candidates, evaluate applicants using the selection criteria

Select applicants for interview based on skills, abilities, qualifications and experience relevant to the role. Match skills, ability and experience with the job requirements.

Tip: Clearly document your reasons for making decisions to help you to provide feedback to applicants.

Seek further information from applicants if necessary.

Step 6: Prepare for the interviews

Prepare interview questions that are consistent for each applicant and that do not imply discriminatory decision making.

Ensure that the interview venue is accessible for the candidate.

Tip: When organising a time for the interview, ask the candidate if they need any special assistance to participate, e.g. a person who has a hearing impairment may need an Auslan interpreter.

Step 7: Conduct interviews with the short-listed candidates

Only ask questions that directly relate to a person’s ability to do the job. Questions should not relate to information that could be used to discriminate.

Example

If you are interviewing candidates for a position that will require interstate travel, you can ask applicants whether they will be able to perform the genuine job requirements – including interstate travel – without asking them potentially discriminatory questions about their family responsibilities or childcare arrangements that may or may not affect their ability to travel.

Tip: Keep a record of questions and answers.

Important: Set aside commonly held assumptions regarding sex, age, race, etc.

You can require that a job candidate disclose their disability or impairment if it is relevant for the job they are applying for. However, it is unlawful under anti-discrimination laws to use that information in a way that discriminates against the applicant.

Do not assume that a candidate with a disability cannot do the job. You must take all reasonable steps to obtain the relevant and necessary information about the disability. Any information obtained must only be used for the purpose for which it was collected and this purpose should be made clear to the applicant.

Important: You can only refuse to employ the applicant on the grounds of disability if their employment would require services or facilities that would impose an unjustifiable hardship on your business.

Tip: There are specialist support services that can provide advice in relation to workplace modifications to accommodate an employee’s disability or impairment. You should make the modifications to your workplace before the person commences employment.

Example

Anne, who is visually impaired, applied for a technology programmer role. The role required her to work from a computer.

Prior to the interview, Anne disclosed that a guide dog would need to accompany her to work but that it was trained and would not pose any difficulties.

At the interview, the role requirement was explained clearly. Anne was asked if she thought she would require assistance to undertake the tasks and what would be the best way for the company to help her. She stated that all she needed was software to be loaded onto the company’s system to allow her to read the screen.

As the cost of the software would not cause unjustifiable hardship to the business, and the guide dog would not pose any foreseeable difficulties, her visual impairment should play no part in the decision-making process.

In certain circumstances, federal anti-discrimination legislation allows you to ask a candidate for information relating to their medical history if it relates to medical conditions that only affect people of the candidate’s sex, e.g. pregnancy.

Example

During a job interview, Sue explains to Tamar the workplace tasks that cannot be carried out by a pregnant employee for safety reasons, and asks Tamar to notify her if she becomes pregnant. However, Sue cannot use that information as the basis of any decision to hire or fire Tamar.

Remember: Anti-discrimination laws require employers to take reasonable steps to accommodate pregnant employees in the workplace. The fact that a job would pose a health and safety risk to a pregnant employee or a foetus is not a legal excuse to exclude candidates who are pregnant or intend to become pregnant. An exception applies if the refusal relates to the inherent requirements of the role.

Caution: Unless this exception applies, you cannot ask a prospective employee to disclose whether they are pregnant or intend to become pregnant in the near future. Seeking this information in the recruitment stage will suggest, in the event that the candidate is rejected, that the employee’s pregnancy or potential pregnancy was a motivating factor in the rejection of the candidate.

Please refer to pregnancy in the word index for more information.

Step 8: Determine and assess pre-employment tests such as medical, competency or psychometric tests according to the role requirements

If you use pre-employment tests to assess candidates, ensure that they relate specifically to the job criteria and performance required for the role the candidate is applying for.

Check tests for any bias or indirect discrimination.

Step 9: Contact referees

Only contact referees specified and authorised by the candidate, and then only ask the referee questions that relate to the selection criteria. Ensure that information is recorded in a consistent format.

Step 10: Select the best candidate for the job

Select the successful candidate on the basis that they best meet the key criteria for the job. Record the reasons for your decision.

Important: Offer similar terms and conditions for candidates of similar qualifications and experience undertaking the same role.

Tip: Provide constructive feedback to unsuccessful candidates.

Caution: Using a recruitment agency does not release you from your responsibility not to discriminate for an unlawful reason when recruiting. Any party involved in recruitment may be liable under anti-discrimination legislation.

Make it clear in the brief you provide to the recruitment agency that it must comply with equal opportunity practices and use selection methods that are non-discriminatory to meet the needs of your business.

Important: Recruitment requires trained staff who are aware of anti-discrimination laws and guidelines.

Please refer to recruitment in the word index for more information.