Employers undertaking a recruitment process need to be aware of the risks that can arise, particularly in relation to discrimination. Avoiding discriminatory practices, being aware of the protected grounds of discrimination, considering the inherent requirements of the role and hiring based on merit are essential. A candidate who feels they have been subjected to discrimination has avenues available to them to pursue a claim under federal anti-discrimination legislation, state anti-discrimination legislation and the Fair Work Act 2009.
Employers should ensure that any recruitment process considers the following five tips.
- Use technology carefully
In recent years many employers have sought to rely on technology to assist during the recruitment process. Technology such as using video conferencing, automated process programs, artificial intelligence and various online recruitment tools have been beneficial to employers. The use of technology has been essential to organisations navigating the recruitment process during enforced lockdowns and the hybrid working model.
The use of technology comes with a warning to use it carefully, particularly in relation to discrimination where it can result in some discriminatory outcomes. For example, one of the issues with the use of video conferencing during the recruitment process is that it provides a window into a candidate's personal life. A candidate's home environment may allow an interviewer to ascertain a candidate's religion, sexual orientation, family or carer responsibilities or political preferences. Any decisions made in relation to these grounds could expose an employer to a discrimination claim.
Employers using automated process or artificial intelligence also need to understand how the technology works so they can ensure that discriminatory outcomes are not occurring inadvertently. The use of technology should be periodically reviewed, and the results tested to ensure there are no discriminatory outcomes.
- Know the "lesser-known" grounds of discrimination
Federal anti-discrimination legislation applies to all employers. This legislation prohibits discrimination on the grounds of age, sex, race and disability. Each state and territory also has anti-discrimination legislation which prohibits discrimination on various "lesser-known" grounds. Many employers may not be aware that physical features, spouse or partner identity, employment activity, irrelevant criminal record or trade union activity are also protected grounds of discrimination in some states and territories.
For multi-state employers the grounds of discrimination can vary significantly between the different states and territories. Employers must ensure that they are aware of the protected grounds of discrimination that are applicable in their state or territory and stay up-to-date in relation to any changes.
- Make reasonable adjustments
Around 20 percent of Australian's identify as having a disability. Accordingly, it is important to be aware that disability is a protected ground of discrimination and ensure that discrimination does not occur on this basis.
Employers should not discriminate against a candidate if they disclose a disability which requires a reasonable adjustment. Employers must accommodate a candidate with a disability and all employers have a positive obligation to make reasonable adjustments up to the point of unjustifiable hardship. Employers should consider adjustments to be made, along with the impact of the adjustment, obtain advice and keep written records of their considerations and decisions.
- Keep records
Employers should keep records of the recruitment process and decisions made in relation to all hiring activities (including unsuccessful candidates). Any actions and decisions made related to the inherent requirements of the role is not discrimination. Therefore, employers will be better placed to defend discrimination claims if they are able to produce records to confirm how hiring decisions were made.
- Experience matters
It is important that the employers conducting a recruitment process are aware of the operation of discrimination laws and have received appropriate training on the legal risks and pitfalls of the recruitment process. They must be able to undertake the fundamentals of conducting an appropriate recruitment process such as avoiding discriminatory language in advertisements and position descriptions, asking the right questions (and not asking the wrong ones) and assessing the inherent requirements of the role.