'Discrimination is treatment or consideration of, or making a distinction in favour of or against, a person or thing based on the group, class, or category to which that person or thing is perceived to belong to rather than on individual merit.' (www.dictionary.com)
The Commonwealth Government has introduced laws over the last 30 years to help protect people from discrimination. To summarise there are 5 federal laws (Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984) and every state and territory has its own anti-discrimination laws. Below is an example of these laws in action. It is always good for employers to be aware of legal issues that may catch them ‘unawares’!
In the Willmott v Woolworths Ltd (2014) case an applicant claimed Woolworths had breached Queensland anti-discrimination laws. Woolworths requested both the date of birth and gender of applicants. Woolworths argued that the age of applicants was required as some roles cannot be performed by those under 18. They claimed the applicant’s gender was needed to maintain the correct gender balance within the workplace as stipulated in the Commonwealth’s workplace gender reporting requirements. Even with these justifications Woolworths was ordered to pay the applicant $5,000 in damages.
To be on the safe side, all initial application forms should request only the applicants essential information. Any information which may be used for discriminatory purposes (age, sex and gender identity etc) could land the employer in hot water.
This can be extended to social media. Any information acquired from social media (LinkedIn, Facebook etc) which adversely affects an applicants chances at gaining employment may pave the way for that applicant to make a compensation claim to the Fair Work Commission. This is relevant if the applicant thinks the employer made a decision based on any aspect of their lives which may be discriminated against including the above (age and sex) but also including race and cultural affiliation, familial circumstances, political or religious affiliations or disability.
If you have any concerns regarding your business’s recruitment process please do not hesitate contacting us for advice on all aspects of employment law.