"Thank you very much for the help you have offered. When I first contacted you through email, I was really surprised at how quickly you got back to me. The position you found for me fits me perfectly well, and I like it very much. Throughout the process, you have been so helpful, liaising very professionally and efficiently. Thank again for all you have done."Underground Production Geologist, South Perth
How recruiters can avoid discrimination
(October 2010)It is important to avoid discriminating against applicants at any stage of the recruitment process. The federal government has set out laws prohibiting discrimination against employees on the basis of race, colour, sex, sexual preference, age, disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. In addition to this there are minor state differences - for example, WA prohibits discriminating against someone on the basis of a spent criminal conviction.
Not only is discrimination on the above grounds illegal in Australia, but it also reflects poor recruitment practice. A good recruiter will put the best match forward for the job - regardless of any irrelevant factors, such as those listed above, that do not prevent the candidate from doing the job in hand.
What is discrimination?
Discrimination relates to treating one group or person less favourably than another because of attributes such as race, sex, or marital status (to name a few).
There are two types of discrimination - direct and indirect. Direct discrimination relates to treating one person less favourably than another because of a particular attribute. An example would be deciding not to employ someone because of their age. Indirect discrimination relates to allowing a condition that would mean a group of people could be excluded or treated less favourably due to a particular attribute. An example of this would be to specify a minimum height and weight for job applicants that would mean females as a group were generally unlikely to meet the criteria.
Even though it is possible to discriminate unintentionally, the laws regarding discrimination remain the same regardless of whether your action was intentional or otherwise, and an individual or company found to be responsible for discrimination will find themselves facing the legal consequences of a tribunal.
There are occasions where it is lawful to stipulate that an applicant must possess a particular attribute, such as being of a specific race or gender (for example). Certain roles are subject to exceptions on the basis of it being a genuine occupational requirement for a person to possess that attribute. E.g., a role may stipulate that a male worker is required to clean men's lavatories.
Types of discrimination
Race, colour, national extraction, and social origin
It is unlawful to discriminate on the above grounds. An example of direct discrimination would be advertising that job applicants must be of Australian nationality. An example of indirect discrimination would be requiring applicants to be able to write in English. This could only be justified if writing in English was essential for the role.
Sex and sexual preference
It is unlawful to discriminate on the above grounds. Direct discrimination here could be if you were to hire someone on the basis of them being male or female. Indirect discrimination could be advertising your vacancies in a magazine or newspaper that was aimed at a male / female or gay audience, and not advertising anywhere else.
Marital status, family responsibilities, and pregnancy
It is unlawful to discriminate on the above grounds. An example of direct discrimination would be overlooking an applicant who was pregnant, or failing to allow flexible hours where possible for childcare arrangements. An example of indirect discrimination would be stressing that a full time commitment to long hours was necessary, when it was not in fact essential to the role.
Discriminating on the grounds of age is unlawful. It would be direct discrimination to refuse to hire workers who were too old or too young for a particular company. An example of indirect discrimination could be if a company adopted a 'last in - first out' redundancy policy, or if a company advertised using adjectives that specified an age group - e.g., 'mature workers.'
Good practice is to advise candidates not to publish a date of birth on their CV's, and to avoid asking candidates for their date of birth or age.
It is unlawful to discriminate on grounds of disability. Direct discrimination would be choosing not to hire someone who was wheelchair bound (for example) who was still capable of doing the job. An example of indirect discrimination could be advertising for 'able-bodied workers.' As long as someone with a disability is able to do the job then they should be treated equally to someone without a disability.
Religion and political opinion
It is not lawful to discriminate against someone on the grounds of their religious beliefs or political opinions and/or affiliations. An example of direct discrimination would be if a company did not hire someone because of their religious beliefs (actual or perceived). An example of indirect discrimination would be if a company stated that employees were not allowed to wear anything covering their heads. This would discriminate against people adhering to religions that require heads to be covered, and could only be justified if the employer could prove that there was a genuine and necessary reason for employees to have their heads uncovered.
So how do you avoid discriminating?
- State clearly what is required in order to do the job, and avoid mentioning anything that may be superfluous;
- Do not state that an applicant must be from a particular race/ nationality/ place/ gender, etc. unless that is a genuine occupational requirement, and therefore allowed under discrimination legislation;
- Avoid using terms that imply a certain age group (such as youthful / mature).
- Avoid questions that are irrelevant, such as "Do you have children?" or "Are you married?" or "What nationality are you?";
- When referring to a candidate's family use gender neutral terms (e.g., 'partner' instead of 'wife') and only ask what is necessary. For example, a client paying for relocation may need to know how many people they will be relocating with the candidate, so instead of asking if a candidate will bring his wife or children (for example), ask if he will be relocating alone, or if he will be bringing any other parties with him;
- It is your responsibility to ensure a candidate has the right to work in Australia and, if they don't, that you communicate their visa requirements to your client. When asking about this situation simply ask your candidate if they have the right to work in Australia, or if they require sponsorship. It is not necessary to ask for details of their nationality or citizenship;
- If your candidate has a disability ask only what questions are necessary to ensure that they are able to do the job;
- Do not attempt to elicit irrelevant information from your candidates - e.g., what religion or political persuasion they are.
- Do not pass on irrelevant information to clients that could then be used to discriminate against an applicant. For example, a client does not need to know if a candidate is homosexual, or if they have children (unless the latter forms part of an arrangement such as relocation and arranging flights);
- If a client asks you to discriminate when finding suitable applicants then you will need to take the following steps:
- Advise the client that you are not able to narrow your selection on that basis, and that you will endeavour to find the most appropriate person for the role regardless of the particular attribute that the client has asked you to seek out/ avoid;
- Stay friendly and polite to your client, and remind them that recruitment agencies are subject to the same discrimination legislation as all companies;
- Do not lecture or admonish your client - stay positive and say that you are happy to find suitable staff for them, but that you will have to disregard any preference that could be discriminatory when putting candidates forward;
- Put full notes on the database of what your client said and what you advised;
- Put forward a selection of CV's to your client, ensuring that you do not discriminate in any way.
To sum up
Always consider what information is necessary for you and your clients to know when recruiting staff. Ensure that you seek out the most suitable people for your clients regardless of race, gender, age, or any other attribute that does not impact on a person's ability to do a job.
Do not be pressured by clients into acting in a way that could be seen as discriminatory. If found responsible for discrimination both you personally and your company could be held liable.
If in doubt - ask for advice from more senior staff!