When you are looking for new staff, it is important you do not advertise, interview or hire people on the basis of characteristics that could be seen as discriminatory.
For example, it would be discriminatory to include in a job advertisement for a building project manager that they needed local knowledge to undertake the job. This could discriminate against newly arrived migrants who may have had more than 20 years building project management experience.
This section will help employers avoid the common pitfalls that lead to discrimination when recruiting.
Advertising jobs is a good way to attract a wide range of suitable people. To get the best person for the job:
- specify the skills and abilities required
- avoid referring to irrelevant personal characteristics
- advertise widely.
Job advertisements should not suggest preferences that are based on a certain characteristic.
- 'team leader' or 'supervisor'
- 'bar attendant'
- 'successful track record' or 'proven experience'
- 'five years experience'
Advertisements should describe the job and the skills and abilities needed, rather than who can or can't do the job.
Avoid any reference to personal characteristics unless they are part of the requirements of the job or you have an exemption.
If an advertisement discriminates unfairly, both the employer and publisher, printer or broadcaster of the advertisement, may be held responsible.
Position descriptions or job specifications should not directly or indirectly discriminate against a person unless it interferes with their ability to do the job.
When writing a job description:
- State the job purpose and outline the duties involved.
- Detail the essential qualifications, knowledge, skills and experience required.
- Be specific about the person requirements in relation to the job.
- Distinguish between essential and desirable selection criteria.
- Rank the criteria in order of importance to help separate the best applicants.
- Detail restrictions or conditions such as overtime or needing a car.
- State who the job reports to and who reports to the job.
- Use plain English.
- Translate or publish it in large print or audio format if appropriate.
Ask applicants to directly address each of the job's selection criteria. This will help you objectively compare applications.
Job application forms are sometimes used to select workers. Job application forms should only ask questions directly related to the skills and qualifications needed to do the job.
Questions about personal characteristics could be considered discriminatory if they are not relevant to the job.
Job application forms might ask about past WorkCover claims, injuries or health. This information can only be asked when the injury may affect a person’s ability to do the job, especially if it could place others at risk.
If you are going to ask about disability, injury or health it should be only in relation to a person’s ability to do a job. If an applicant reveals that they have an injury or a disability, you should not assume they can't do the job. This could be disability discrimination.
Employers asking applicants for photographs could be a request for discriminatory information.
Photographs showing a person's race, age and sex could lead employers to employ someone for reasons other than their ability to do the job.
There are exceptions, such as employers seeking models or actors with a particular look. It is the employers responsibility to show that requests for photographs are reasonable and will not lead to discrimination.
Employers use interviews to determine the best person for the job,.
Questions should be focused on the applicant's ability to do the job. Questions about irrelevant personal characteristics may be discriminatory unless they are genuinely related to the person's ability to do the job.
When interviewing applicants
- Use an interview panel of diverse people who are aware of equal opportunity requirements.
- Conduct the interview with more than one interviewer - you can involve another member of staff or a union member.
- Prepare questions that relate to the job skills and abilities.
- Ask each applicant the same questions, to make sure the process is fair and consistent.
- Record questions and tests, relevant responses, and reasons for choosing the best applicant.
- Score them against the requirements of the job.
- Give them information about pay rates, hours, probationary period and any special conditions.
- Check their referees.
You should not assume a certain type of person would be best for the job or that they would not have certain skill and abilities.
Questions that could be discriminatory
- Do you intend to have children?
- Are you married?
- How old are you?
- Where do you come from?
- Do you have to wear that headscarf?
- Have you had a WorkCover claim?
Rather than asking about previous WorkCover claims, employers can ask applicants if they have had an injury that could affect their ability to do the job.
Keep records of interviews and any reasons for short-listing and making final choices.
Some employers use pre-employment medicals when choosing workers. This checks that applicants are physically and mentally able to do the job without putting yourself or others at risk.
These tests are done by medical professionals, chosen and paid for by the employer.
They should be properly designed and carried out to test the ability to do to the job, not to find out about irrelevant medical conditions or past compensation claims.
Things to think about
If you want to use pre-employment medicals, you should:
- Give the doctor information about the work involved in the job.
- Make sure the standard is no different from that required of existing staff.
- Ask if you could reasonably find ways to employ a person with a medical condition or disability, or if this would create an unjustifiable hardship for your business.
- Advise applicants of the outcome and maintain strict confidentiality.
- Document your decisions and your reasons for them.
- Avoid assuming what people with disabilities or past medical conditions can or can't do.
It is against the law to reject an applicant because of a disability, injury or illness that won't prevent them from doing the job safely.
It is also against the law to vary the terms or conditions of a person's employment because of a disability, injury or illness that does not interfere with their ability to do the job.
If the doctor conducting a pre-employment medical discriminates unfairly, both you and the doctor may be held responsible.
When choosing staff, you may wish to use psychological tests, also known as aptitude or psychometric tests, to check they are suitable for a job.
They should only be used to test the applicant's ability to do the job based on the selection criteria - they are not to find out about a person's private life.
Psychologists develop and conduct the tests, analyse the responses and give you a report. Questions should be carefully designed.
It is important to:
- Understand the relevance of the test to the job.
- Avoid testing for irrelevant psychological conditions.
- Ensure the person designing the test understands the job requirements.
- Accommodate applicants who may have a disability or a different cultural background.
- Answer applicants' questions about the testing process.
- Make sure test results are confidential.
- Consider the results along with interviews and referee checks before you make a final decision.
If the person conducting a psychological test discriminates unfairly, both you and they may be held responsible.