This information is about the obligations placed on employers in relation to recruitment under the Anti-Discrimination Act 1991.

The aim of recruitment is to employ the best person for the job.

Selection criteria and position descriptions need to focus on the skills and capabilities being sought in the employee. Emphasis should be placed on a person's abilities rather than their formal qualifications and length of service because it is often the case that people in disadvantaged groups have not had fair opportunity to obtain previous experience or formal qualifications. However, they may well be able to do the job. Nonetheless, some jobs, such as teaching and nursing, require mandatory formal qualifications.

What about job advertisements?

Discriminatory advertising is against the law and is covered by the Anti-Discrimination Act 1991. Job advertisements need to give the impression that all suitable applicants are welcome to apply.

References to sex, relationship status, age, race, religion etc should be avoided, as should the use of words that may indicate a preference for particular groups or may discourage others from applying, eg foreman, tradesman, glamorous, well-built, mature, youthful, office girl etc.

Publishers can be fined and be the subject of a complaint to the Commission for publishing discriminatory advertisements that show an intention to contravene the Anti-Discrimination Act 1991. Discriminatory advertisements will therefore often be refused or modified by publishers in order to avoid legal liability.

For example: Daniel advertised for an 'office girl' to work in his real estate agency. Peter, an experienced unemployed clerical assistant, considered applying for the job but was discouraged by the terminology in the advertisement. The discriminatory advertising disadvantaged Peter in the employment area, even though he may well have been the best person for the job.

Advertisements need to provide a clear outline of the job rather than express an employer's automatic assumptions about who might be best for the job. Applicants are then able to apply for jobs on merit.

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What can be asked in application forms and interviews?

When a person applies for a job they need to be judged on their skills and abilities. Personal matters have nothing to do with a person's ability to do most jobs. Inappropriate personal questions can influence decisions about an applicant's suitability for the job and may result in unlawful discrimination. If it does the applicant has the right to complain to the Commission.

Find out more about our complaints process

The legislation specifically makes it against the law to ask for unnecessary information that may result in discrimination. It is therefore only acceptable to ask questions about personal matters for very specific reasons, including where it is necessary under award conditions (eg for age related wages), for other reasonable purposes (eg if citizenship is a legal requirement of the job) or where an exemption may apply. The employer must be able to show why the information is needed, and an applicant has the right to ask an employer to do so if they ask questions about personal matters.

Generally it will be against the law for employers and employment agencies to ask questions on application forms and in interviews about a person's relationship status, sex, age, number of children (if any), plans to have children, child care arrangements, spouse's name or occupation, country of birth, medical history, sick leave and workers compensation record, religion, sexual preference, political belief or attitude to unions.

It may also be unlawful to request consent for access to Worker's Compensation history. If questions like these are asked it may result in the information being used to treat applicants unfairly.

For example, an employment application form for an administrative position with a large accounting firm included an optional question about the applicant's medical history, including mental health. Larry was reluctant to disclose that following a car accident he had experienced clinical depression requiring a period off work. However, he thought he might be seen as uncooperative or dishonest if he didn't answer the question so Larry provided details of his mental illness. Larry's sick leave record and previous illness had nothing to do with his capacity to do the job. Because it is against the law to ask for unnecessary information on which discrimination may be based, Larry could make a complaint about the discriminatory application form.

Employers should avoid stereotyped assumptions about which gender, age group, race etc would be best for the job. For example, if employers are worried about the ability of an applicant with children to work at certain hours, they should simply ask about availability rather than making guesses or unfair assumptions based on personal matters. If travel or overtime is involved with the job, all applicants should be informed and asked whether they can be available. Assuming that workers with children cannot travel or work overtime is unfair and could result in liability for unlawful discrimination.

Questions about personal matters should not even be optional because applicants may well expect that they have to answer them or else risk being seen as uncooperative and therefore an unsuitable candidate. It is similarly unacceptable to request photographs of applicants to be submitted because they may cause the discriminatory exclusion of certain people on the basis of their sex, race, age etc.

For example, Christine is undergoing medical treatment for gender affirmation. She applies for a job as a receptionist in a medium-sized firm, and is offered an interview. At the interview, she is asked about her gender identity, and when she says she's a woman, she is told 'there's no way you could work here - the blokes who come in would tear you apart. You just wouldn't fit in, and we'd look like idiots. That's a pity, because you looked pretty good on paper.' Christine lodges a complaint with the Commission.

Interviewers should ask comparable questions of all applicants, otherwise biases and unfair assumptions can affect employment decision making. This allows everybody an equal chance to outline their professional interests, previous work experience, work style, career plans and the skills that they can bring to the organisation. This gives a fair and clear picture of who will be best for the job and will result in the best appointment.

Some procedural rules can also help interviewers avoid discrimination. Generally, in larger organisations interviews should be conducted by an appropriate selection panel. Panels could comprise men and women, representatives from target groups where appropriate, and an independent external member if possible. Smaller organisations and businesses may not have the resources to appoint selection panels. Despite this, small employers should adopt anti-discrimination and sexual harassment principles in conducting their recruitment, including ensuring that interviews are conducted in a non-discriminatory fashion.

The format of an interview can be agreed on by panel members before interviews are conducted and, preferably, should be outlined to candidates. All employers should keep a record of the interview with each applicant, recording the reasons for short listing and the reasons for the final choice. If there is a complaint of discrimination adequate records will help to show what really happened and why the decision was made.

For example, when Tranh attended an interview for a sales position he was asked about his citizenship, the size and whereabouts of his family and his religious beliefs. Sometimes employers need to ask about citizenship because it is a legal requirement of the job. However, the position Tranh had applied for had no such legal requirement. Furthermore, although the interview panel did not comment on his responses to the personal questions Tranh thought the questions were discriminatory. It is against the law to ask for unnecessary information during interviews. Details of Tranh's family and his religious beliefs make no difference to Tranh's capacity to do the job. Tranh could make a complaint of discrimination.

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Can pre-employment tests and medicals be used?

Yes. Pre-employment tests can be used in recruitment processes, but only where they are applied to all applicants, are reliable, valid, free of bias and fair. For example, it is acceptable for a typing test to be applied to all applicants for a position involving computer data entry. However, if literacy tests are necessary because of the level of English required for the duties of a particular position, they should be completed by all applicants, not just those from non-English speaking backgrounds. Irrelevant general knowledge questions should be omitted from all tests because they may unfairly disadvantage people from certain groups.

Medical tests are not generally appropriate and may leave employers open to complaints of impairment discrimination. However, in some circumstances it is appropriate and even necessary to require a pre-employment medical if there are specific health risks associated with the job, eg asking applicants about respiratory illness for jobs involving dusty conditions. Provided that the information is not used in any discriminatory way, medicals after employment are not against the law, eg for superannuation purposes.

Examining medical officers must have a very clear understanding of the duties and requirements of the position because the medical examination should be focused on the applicant's ability to do the job. Applicants who are rejected on the basis of medical information they have provided (eg on the application form or through worker's compensation records) can complain about discrimination if the employer cannot prove on the balance of probabilities that workplace health and safety is at risk, or that another relevant exemption applies.

For example, Elizabeth was offered a job as a factory worker. However, when a pre-employment medical showed that she had slight hearing loss, the company withdrew the offer because it was thought her hearing impairment would be an occupational safety risk. Elizabeth complained about discrimination on the basis of impairment Investigation showed that her hearing loss did present a significant workplace safety risk and the company was therefore able to successfully defend its action.

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Employment agencies

The Anti-Discrimination Act 1991 specifically refers to discrimination in the employment agency area and states at section 23:

A person who carries on a business (whether or not for reward or profit) of introducing people seeking work to employers must not discriminate -

(a) by failing to supply a service of the business, whether to a person seeking work or an employer seeking a worker; or
(b) in the terms on which a service is offered or supplied; or
(c) in the way in which a service is supplied; or
(d) by treating a person seeking work or an employer seeking a worker unfavourably in any way in connection with a service

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Recruitment tips for employers

The first step is to develop a clear idea of the duties of the position. Take into account the job description, which outlines the responsibilities of the position, and to whom the person will be accountable.

Avoid stereotyped notions about which gender, race or age group would be best for the job. Your aim needs to be to employ the best person, regardless of which group they might belong to.

For example, when looking for a receptionist, avoid the assumption that the best person for the job will be a young woman. The selection criteria for the position might read as follows:

1. Demonstrated ability to deal with the public efficiently and pleasantly
2. Ability to use computer and other office equipment
3. Articulate phone manner
4. Well-groomed appearance

As can be seen, the description doesn't limit the job to any particular type of person, and you can ask questions against these criteria at interview.

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The issue of accents can come up from time to time. Taking the recruitment situation as an example, keep in mind that the requirement is for an 'articulate phone manner', not an 'Australian accent' or an 'English as a first language speaker'.

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Applicants shouldn't be asked to send in a photo. This can have the same effect as asking about someone's age, race or sex.

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Impairment issues

Applicants also shouldn't be asked to list any impairments or disabilities they might have. The legislation specifically makes it unlawful to ask for unnecessary information that may result in discrimination. Asking someone to list his or her impairments could well fall into this category.

A better question to ask is whether the applicant has any impairment which would affect them doing the tasks of the job. If this question is backed up by a clear position description, applicants will be able to answer appropriately.

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