Introduction
The inclusion of photos on job applications is something many people are comfortable with. However, it is necessary to know when your potential employer can legally request a photo. Including photos on job applications may lead to discrimination on the basis of race, age, gender or disability. Whilst the bias may not be explicit, subconsciously these attributes may play a role in your applications success. This article explains the legality of requesting a photo, and what applicants and employers may do in response to this.
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Is asking for a photo illegal? Relevant Legislation
Photos on job applications are not specifically prohibited. However, it is prohibited to ask a candidate for any information that may be used to discriminate against them. For most jobs one’s appearance is not relevant to their qualification for the role. Therefore, despite some ambiguity, asking for an applicants photo will most likely be considered illegal under relevant discrimination law. This is similar to if an employer explicitly asked for your ethnic background during recruitment.
Prominent federal discrimination laws includes the Australian Human Rights Commission Act 1986, Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984 and Fair Work Act 2009. As a collective, these protect individuals rights against discrimination during the recruitment process. Specifically, under s351(1) of the Fair Work Act 2009, it is illegal to take adverse actions against a prospective employer based on personal attributes. This includes any information obtained in the interview/recruitment process. As a result, requiring a photos on job applications may be illegal.
The Human Rights Commission’s ‘quick guide to Australian discrimination laws’ may be useful to discerning these relevant pieces of legislation.
Are there exceptions to asking for a photo?
There are exemptions to the rule – such as industries or jobs where physical appearance plays an active role in recruitment. This may include actors or models cast for specific characters. The Fair Work Act 2009 outlines the basis for exemptions under s351(2)(b). It states that discriminatory factors may not be illegal if the position has inherent requirements that concern these factors. Therefore, it comes down to the nature of the position and whether physical attributes are relevant to employment prospects.
Is it discriminatory to prefer a candidate who has voluntarily included a photo on their application?
Simply put, the answer is yes if their race, gender or age is forming the basis of their viability as a candidate. If the picture plays no part in the individuals candidacy, and instead their experience and qualifications make them the most competitive, then no.
What to do if the employer has asked for a photo on your job application
If you’ve been asked for a photo on your job application and it is clearly not relevant to the position, it might be a good idea to ask the employer why they might need one. Hopefully this will either:
(i) provide you with some clarity on why it is important to the role,
(ii) subtly bring awareness to the potentially discriminatory nature of the request, or,
(ii) form basis for a claim of discrimination.
A respectful inquiry into the relevance of a photo may remind the employer of their responsibilities during hiring, helping not only you but other applicants. A fair and equal recruitment process is better for everyone.
Summary
For job roles where physical attributes are not relevant, you do not need to include a photo on your job application. Providing a photo may lead to subconscious or overt bias during the recruitment process. Relevant discrimination laws protect prospective employees from discrimination. For more information on these click here. Similarly, Fair Work has great resources on guiding you through this tricky process.
You may also like to contact one of our lawyers to provide you with some guidance, here. Our legal guides on employment and HR may also be useful.
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