Introduction
Avoiding discrimination
How can you avoid discrimination?
Exceptions and Exemptions
Advertising
Job applicants with disabilities
Unjustifiable Hardship
Pre-Employment Testing
Occupational health and safety
Checking References
Giving feedback
Introduction
Potential employees who know that recruitment will be based on sound EEO principles, and that they will not be disadvantaged by irrelevant facts like race or age, are more likely to apply for positions with your organisation.
Knowing that they were recruited on merit, they can be confident of fair decision-making in all areas of the work environment.
Result? The employer has the best person in the job and will be training, promoting, and otherwise developing its workforce to be as productive as it can be.
It’s a win-win situation.
Recruitment does, however, still raise uncertainty and concerns among workplace participants on both sides of the fence.
Avoiding discrimination
Discrimination usually occurs when an employer makes decisions on the basis of the group (sex, disability etc.) to which a person belongs or on the basis of characteristics generally ascribed to that group. In other words, decisions are made on the basis of stereotypical attitudes rather than the strengths, weaknesses and suitability for the position of the individual applicant.
In other words, the employer has narrowed the field from which it can recruit and may, indeed, be losing the best person for the job.
How can you avoid discrimination?
The Queensland tribunal [Hooper & Ors v Virgin Blue [2005] QADT] which decided that job applicants at Virgin Blue had been discriminated against on the basis of age, provided a few tips:
- Members of the selection panel for those jobs were all under 35. They applied a young person’s stereotypical view of suitable applicants to the field of candidates. A more diverse selection panel may have avoided this mistake.
- The test which the selection panel devised for determining ‘behavioural competencies’ was weighted against older applicants. Younger applicants are more likely to be able to ‘sing and dance’ in a way that will appeal to a young selection panel than are older applicants.
- The members of the selection panel had not been trained in EEO recruitment principles.
- The recruitment process was not supervised or monitored by senior managers. The fact that, of 750 applicants, only one person over 35 was recruited, should have raised some questions.
Of course, it’s not unlawful to recruit on the basis of genuine job requirements.
Before recruiting new staff, work out what makes people good/excellent in the job. What skills, abilities, qualifications or experience are really essential? Check the list of assumptions to make sure that you are not unnecessarily excluding people or being discriminatory.
Exceptions and Exemptions
There are exceptions to the ordinary rules about unlawful discrimination. Exceptions apply automatically and include junior employees and essential and relevant job requirements.
Youth, beauty and femininity are obviously genuine and relevant job requirements for a womens’ fashion model. These are not genuine and relevant requirements, however, for the position of receptionist.
Good grooming, presentation, manner and speaking voice may be necessary for someone who is expected to present a good image of the employer to outsiders. But these are not qualities possessed only by young attractive women.
Other examples include:
- a male actor for a male part in a play, or
- a woman to clean female toilets while women are likely to be using them, or
- a person of a particular ethnic group or age group to provide welfare services for that ethnic group or age group where this is the most effective way of providing the service, or
- a person of one gender rather than the other where the job involves the delivery of personal welfare or educational services to that gender and a substantial number of those receiving the services might reasonably object if they were delivered by someone of the opposite gender.
It is also possible to apply for an exemption where a recruitment decision is intended to redress some kind of discrimination or disadvantage. To apply for an exemption, contact the Legal officer at the Anti-discrimination Board. Examples of the types of services which would require a special needs exemption might be women’s health services or a refuge for women only or for men only.Advertising
It is unlawful to advertise a position (or for a media organisation to carry an advertisement) which indicates that the employer intends to unlawfully discriminate in their selection of a person to fill the job.
Employers sometimes try to ‘get around’ this requirement by using words such as ‘mature’ (a ‘mature approach’ is better) energetic, innovative team’ to discourage people not in their preferred age group from applying.
They won’t necessarily get away with it, however.
Mr Gardner answered an ad for a chef in a cafe with ‘a young team’. When he rang, he was asked his age. He replied ‘I’m over twenty-one’. He was forty-six. The director said she wanted someone to fit the team and asked him to drop off his resume.
He arrived, and she reminded him that they were a young team. He said he was happy to work with young people. He did not hear from her again. The advertisement, combined with the directors actions after Mr Gardiner’s enquiry was enough to convince the tribunal that Mr Gardiner had been discriminated against on the ground of his age. [Gardner v Norcott [2004] QADT 39 (7 December, 2004)]
Also, make sure you avoid indirect discrimination in your job ad. For example, asking for a specific number of years experience could be discriminatory on the basis of age, unless it is reasonable in all the circumstances. Greater length of experience does not necessarily translate as excellence!
In any case, by including something that you don’t really need you could miss out on the best person for the job.
Job applicants with disabilities
The first point that needs to be made is this: a person with a disability doesn’t have to tell a prospective employer about it.
This rule was applied in a case involving a woman who failed to mention a previous (10 year old) workers comp claim when she was filling out a job application. [Britax v Rainsfords P/L PR904285 (24 August, 2001)]
She was dismissed when, after she was injured at work, the previous claim was discovered. Her employer argued that this was serious and wilful misconduct.
The IRC didn’t agree. It found that her dismissal was harsh, unjust and unreasonable.
They said that their decision should not be seen as condoning deceit or mendacity about employment history. They thought, however, that this kind of deceit was understandable. Many people who have disabilities know that, if they disclose them, they won’t even be considered for employment.
People with disabilities are entitled to be considered along with all other applicants for a job. They must, however, be able to perform the ‘inherent requirements’ of the job.
Which means, of course, that you have to know what the inherent requirements are, before you interview job applicants. An ‘inherent requirement’ of a job is one which is essential to getting the job done.
The Police Service got caught in this trap when they excluded an applicant who had a vision impairment Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67 (6 April, 2004)
. It had not officially identified the ‘inherent requirements’– it could not, therefore, prove that the applicant was unable to perform them.
Furthermore, the tribunal said:
- His individual circumstances were not considered (eg previous job as a security guard);
- The visual acuity test used was not, by itself, sufficient to base a decision on; and,
- The Service failed to consider whether the applicant could do the job with reasonable accommodations.
Information about an applicant’s health or disability isn’t needed at this stage, when no interview has been organised. If an applicant is the best person for the job and they have a health condition or a disability that will stop them from performing the essential requirements of the job, you can identify this through a pre-employment medical.
In general, you must also provide a person with a disability, whom you have decided is otherwise the best person for the job, with reasonable aids or workplace adjustments to enable them to do the job. This so, unless you can demonstrate that to do so would cause your organisation ‘unjustifiable hardship’.
A simple example of this involved Australia Post. [Daghlian v Australian postal Corporation FCA 759 32/7/03] As part of its change from ‘a public service, over the counter type of organization, into a more retail oriented’ one, AP banned workers sitting on stools. It also said stools were an OH&S matter because people might trip over them. One employee, however, needed to sit on a stool because of osteoarthritis, varicose veins & heel spurs. She was put on compulsory sick leave and asked when she would retire. The court, however, said that she could do the inherent requirements of the job, over 10 years, no one had ever tripped on her stool, and providing a stool was a reasonable accommodation for her disability.
Unjustifiable Hardship
To work out if something will cause unjustifiable hardship, all relevant circumstances need to be taken into account. These include:
- what adjustments, changes or additional services or facilities the person with the disability needs
- all the benefits and disadvantages to the person with the disability, other employees, clients, and the employer
- the costs and the financial situation of the employer.
Pre-Employment Testing
There is nothing wrong with testing applicants before offering them a position, as long as the information is not used to discriminate unlawfully against them. Just make sure that tests:
- test skills that are essential to the duties of the job
- are applied fairly and consistently
- that people with a disability are only tested for the essential requirements of the job and are provided with any equipment/ service or aides they would need to perform to the best of their ability
Medical tests can be a useful part of the selection process for jobs that require certain physical attributes. Make sure, however, that a pre-employment medical test relates exclusively and directly to the duties of the job and only test people who meet all the other requirements of the job. It is also important that the doctor has a good understanding of the essential criteria and anti-discrimination law.
Similarly, psychological testing may be appropriate for some jobs, but care needs to be taken. Employers need to be clear about what the tests are actually measuring and to ensure that tests have been professionally validated by qualified psychologists.
Occupational health and safety
In a recent case the federal magistrate’s court found that the NSW Ambulance Service discriminated against a job applicant because he was an insulin-dependant diabetic. [ Vickers v The Ambulance service of NSW [2006] FMCA 1232, 5/8/06.] The court heard that insulin dependant diabetics could have hypoglycaemic episodes under stress and that this could be dangerous while driving. The employer’s endocrinologist, however, said that the job applicant in this case had a long history of control of his blood sugar levels. In fact, he hadn’t had an episode even while working as a theatre nurse or as a St John’s Ambulance volunteer. The magistrate awarded the man $5,000 and said that he must be considered for recruitment.
The point is not that you have to employ someone whether or not they are an OH&S risk. The point is, that you need to consider each applicant’s individual circumstances to determine whether or not he or she poses an unreasonable safety risk to themselves or others.
You could be discriminating if you use pre-employment testing to screen out applicants who you think may be at risk of making a workers compensation claim in the future because they have:
- claimed in the past
- a predisposition for certain kinds of illness or injury
- a condition that may be aggravated by the work they would be doing.
Checking References
Check references after you’ve interviewed — that is, when you’ve already formed your own opinion. Ensure the applicant’s consent before checking references and reassure both applicant and referees of confidentiality. Only speak with the referees that the applicant has nominated.
Ask referees how they think the person meets your selection criteria, rather than asking them open-ended questions about what they think of the person — particularly if you are comparing the references of several applicants. This makes it easier to make proper, non-discriminatory comparisons. Don’t ask personal, personality or irrelevant questions.
Giving feedback
Be constructive! A correct, non-discriminatory decision should be able to stand up to both internal and external scrutiny. Keep written records of your decision so that you can explain:
- why each applicant was unsuccessful or successful in terms of the selection criteria, and
- how they compared with the successful applicant (if they met the criteria but not as well as the successful applicant).
When unsuccessful applicants ask why they did not get an interview, or the job, tell them the reasons why they were unsuccessful, including their performance during the interview and any other information that may help them in applying for other jobs.
The reasons you give must relate to the selection criteria. If you refuse to talk with unsuccessful applicants, they may assume you are hiding something!
