Job Advertisements: What’s Discriminatory?

Job advertisements are crucial when it comes to finding the right person for the job a company is looking for. But it’s important to know how to put a good job advertisement out there that isn’t discriminatory. Here, we’ll talk you through the difference between a good advertisement and one that’s discriminatory. Whether you’re advertising or applying for a job, you’ll want to know exactly what’s discriminatory.

Table of Contents

What’s a ‘Good’ Job Advertisement?

According to the Sex Discrimination Act 1984 (Cth), a job advertisement is an advertisement or recruitment notice available to the public, published on the Internet or newspaper and displayed on a notice, sign or label. The Australian Human Rights Commission says that a good advertisement focuses on the skills and ability of a person. But that’s not to say that employers can’t refer to personal characteristics. Personal characteristics according to anti-discrimination laws include: age, sex, marital status, disability and race. Employers can refer to these characteristics if they are a genuine requirement of the job.

A good job advertisement also encourages diversity and shouldn’t imply that only applicants with certain personal characteristics will be considered. If you’re looking to put a job advertisement out there, something to look out for is the wording and phrasing of your ad. You want to avoid including words, phrases and euphemisms that are indirectly or directly discriminatory. So the more restrictive or limiting the language of your advertisement is, it’s less likely suitable applicants will actually apply and may miss out on the opportunity.

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What’s a Discriminatory Job Advertisement?

Section 86 of the Sex Discrimination Act is a key piece of law that makes it illegal to publish a job advertisement that discriminates against a person on the following grounds, such as sex, marital status and pregnancy or potential pregnancy. This is what we’re referring to when we talk about ‘discriminatory job advertisements’. They are discouraging more than they are encouraging of diversity in the workplace. Some examples of job advertisements that discriminate against personal characteristics, which are not genuine requirements of a job include:

  • Example 1: “Looking for an experienced cleaner who MUST speak English at all times, even during breaks“. Now, this is a clear example of direct racial discrimination in a job advertisement because speaking English is not a genuine requirement of being an experienced cleaner.
  • Example 2: “We are seeking a mature and experienced professional to join our dynamic team”. This is a less obvious example of discrimination in comparison to the above example. It’s indirectly discriminating on the basis of age and implying people of a certain age group are viewed more favourably than those not of an older age group.
  • Example 3: “Persons with young children need not apply”. Believe it or not, this was a real job advertisement that went viral on the internet in 2018. The restrictive language and direct discrimination on the basis of sex and pregnancy is abundantly clear here and a more extreme example.

Financial Penalties Under Anti-Discrimination Laws

In light of the above, examples, you’re probably wondering if there are any financial penalties for discrimination in job advertisements. Well, to answer your question there certainly is. The Sex Discrimination Act has a $1,000 fine for individuals and $5, 000 for corporations under Section 86 of the Act. People who breach, in other words, put a job advertisement that unfairly discriminates against specific personal attributes, will be fined.

Exemptions

Exemptions under Sections 13, 14, 30 through to 43 of the Sex Discrimination Act apply in relation to certain employment. This includes employment relating to religious institutions. In this circumstance, gender might be a genuine requirement of that occupation. Additionally, specified gender may be a requirement for a person to work in domestic duties at an employer’s residence, such as a nanny. With every rule of law, there’s an exemption. However, section 18 of the Age Discrimination Act 2004 (Cth) and 21A of the Disability Discrimination Act 1992 (Cth) have the ‘inherent requirement’ exemption. This is something that a job advertisement would need to include if it’s needed to legally work in that role. For people with a disability, employers must make reasonable adjustments. Note that, exemptions for discriminating against a person because of their race only applies in very little circumstances.

Non-discriminatory Job Advertisements

To conclude our multidimensional discussion on what’s discriminatory in a job advertisement, we make the following recommendations:

  1. Include a statement in your job advertisement that encourages people from diverse backgrounds to apply. For example: “We encourage people from all backgrounds to apply, including Aboriginal and Torres Strait Islander People, people from different cultural backgrounds and people with disabilities”.
  2. Advertise on different channels to attract greater diversity among applicants, such as through not for profit organisations.
  3. Make sure you have a clear understanding of anti-discrimination laws and equal opportunity principles that go hand in hand. As a recruiter, you must differentiate between the actual requirements of the role and not treat anyone less favourably based on personal characteristics. And this point cannot be stressed enough.
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