Reminder to avoid discrimination when recruiting

Employers should give careful consideration when advertising a job vacancy, because they could risk a discrimination claim.

Woolworths was found guilty of breaching Queensland’s anti-discrimination laws because of its online application form. Mandatory fields meant that applicants could not submit their application unless they provided their age and gender.

Under Queensland’s legislation, it is unlawful to ask a person to provide information that can be used for discriminatory purposes unless it is ‘reasonably required’ for a non-discriminatory purpose.

While Woolworths conceded that the mandatory fields on the form could be seen as discriminatory conduct, it argued that:

• the applicant’s age was necessary because some jobs could only be performed by people over the age of 18; and
• it required the applicant’s gender to comply with the Commonwealth’s workplace gender reporting requirements.
  

However, these arguments were rejected. The Court held that the applicant’s age and gender were not reasonably required. The applicants could have simply been asked if they were at least 18 years old and Woolworths could have determined gender by using a “reasonable estimate” based on names.

Woolworths was ordered to pay one job seeker $5000 in damages.

Employers should note that Section 351 of the Fair Work Act 2009 also prohibits an employer from taking adverse action against an employee or prospective employee because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Willmott v Woolworths [2014] QWCAT 601

Disclaimer: This summary is not legal advice and for more information on discrimination call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.