You may think when you’re hiring an employee that it’s entirely your choice who you choose to fill the role and how you arrive at this decision, but you must also comply with national anti-discrimination laws.
Society has seen a lot of change in recent years surrounding discrimination. Employers who engage in this tend to not only face legal consequences, but also suffer significant damage to their business’s reputation. This article is aimed at educating employers who may be unsure as to how to implement a fair and inclusive hiring policy and to show where systems which seem okay could in fact be Discriminatory.
What constitutes discrimination?
The term ‘discrimination’ means to treat someone differently on the basis of a group they belong to in a negative way. Discrimination can manifest overtly or it can be subtle. This is where employers can get into trouble, as they sometimes aren’t aware that their actions towards someone are discriminatory. This can be on the basis of age, disability, race, sex, intersex status, gender identity and sexual orientation. An employment lawyer can further advise you on whether your processes are as inclusive as they should be.
Anti-discrimination laws are mainly found in the Fair Work Act 2009 (Cth), but are found in the following:
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
Discrimination can occur at any time during the hiring process. From when you first draft a job advertisement to when you offer the position to the successful candidate, you need to be mindful of how you hire new employees.
Equal opportunity starts before the interviews
Even before you start conducting interviews, discrimination can occur. Let’s take a look at the stages of the hiring process and see where this can happen.
Publishing a job advertisement
Drafting a job advertisement may seem like a simple process, but you also need to draft it in a way that doesn’t deny anyone with adequate credentials the opportunity to apply. In an advertisement, you should not ask for details regarding sex, date of birth, sexual orientation, race or health. It’s also ill-advised to ask for photos of applicants to be provided. Most people these days do not attach photos of themselves to their job applications.
You need to be careful about where you publish job advertisements as it cannot be on a platform where only a particular group of people will apply. For example, posting the opportunity on a particular app may mean that you’re only wanting younger people to apply and could be Discriminatory. Posting your job advertisement on a national recruitment website is recommended as you’ll reach the widest pool of candidates.
Discerning who you’ll invite to an interview
So you’ve received a lot of applications for the job and a few have caught your eye. Be sure that you’re not neglecting anyone who does have the merits for the position because of other factors. For example, studies have shown that a job applicant who applies under an anglo saxon name such as ‘Matthew’ has more success than if a non anglo saxon name is used. A potential remedy to this is to have candidates apply with ‘name blind’ resumes. Unfortunately, discriminatory practices have become so embedded in society that many employers, even if they intend on being fair sometimes still act in ways which are Discriminatory.
Making the final choice
In the same way that you should be conscious of discrimination when reviewing job applications, when it comes to making the final choice you should also make sure that you’re basing your decision on the objective merits of the applicant. If you have a diversity policy, now’s also a good time to check that you’re complying with it and if there’s any measures you can take to promote it.
Contract and salary negotiations
If you plan to employ someone under an employment contract (and not under the relevant award) it’s important that the salary you offer and negotiate with them be equal to what you would offer another successful applicant. It’s well known that there’s a pay disparity between men and women, but this can also apply to people of other groups. Negotiate the salary to be one that’s fair to the employee and based on their merits.
Discrimination is still a serious problem in many workplaces even though it’s illegal. It’s important to take steps towards having a fair and diverse workforce as soon as possible, and this starts even as early as your hiring process.
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