From the way job descriptions are worded to where and how you advertise a position, the hiring process is fraught with potential for inadvertent discrimination.
As a business owner, it is your responsibility to ensure your staff and/or external recruitment agents are aware of their legal obligations, as you may be the one held accountable for unlawful behaviour.
As CEO of DFP Recruitment Agency and current President of the Recruitment and Consulting Services Association (RCSA), Robert van Stokrom explains how to avoid unintentional discrimination when writing and posting job vacancies.
Creating the job description
If you refer to section 351 of the Australian Fair Work Act 2009, it begins with a fair warning.
It states that an employer must not take adverse action against a 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”.
In New Zealand too, it’s illegal to hire (or not) based solely on age, gender, ethnicity or race, religion, sexual orientation, disability, marital or family status or political persuasion. As in Australia, companies have to be mindful the job description is worded accurately and without personal bias. When advertising for, and recruiting new staff, it’s important to avoid referring to personal characteristics unless they are integral to the job. For example, jobs that involve serving alcohol require applicants to be aged 18 or over.
Before penning a job description, the Australian Human Rights Commission (AHRC) recommends employers take the time to clearly define the role’s necessary skills and duties so you don’t end up requesting unnecessary and potentially discriminatory information from candidates, either as part of the application process or during the interview.
“Sometimes unintentional discrimination can come down to a communication issue, so when you are creating the position description, read it a couple of times to make sure you’re not going to contravene any discriminatory legislation, and that it won’t offend anyone,” van Stokrom says.
“You’ve got to choose your words very carefully and make sure you understand the law, but you’ve also got to apply a lot of common sense – and if you’re in any doubt, ask someone else to read it.”
At a glance: Checklist for position descriptions
- Consider and define the specific job requirements using clear, easy-to-understand language.
- Outline the necessary information you will need from applicants to assess their suitability for the role.
- Make a clear distinction between essential versus desirable criteria.
- Explain the purpose of the position and tasks and responsibilities associated with the role
- Include the hours of work and minimum qualification.
- Describe your company, its goals and its direction.
- Make any reference to personal characteristics unless they relate to genuine requirements of the job.
- Ask applicants to divulge irrelevant personal information.
Advertising the position
According to the AHRC, job advertisements that imply only certain applicants will be considered are deemed discriminatory, and may result in fines. For example, an advertisement seeking a “mature, experienced professional” might discourage younger candidates from applying for the role.
“We still see ads today that have been written in such a way that it’s obvious they only want a male to apply, and that’s just not on,” van Stokrom says.
“Of course, if there are particular requirements necessary for the role, you need to spell them out or you’re wasting everyone’s time, but those messages need to be carefully constructed to ensure candidates know exactly why they’re not being considered for the role without offending anyone. You’ve got to be honest, but in a compassionate and caring way.”
You don’t necessarily have to advertise — but you do have to be careful about what you say if you do. A job ad must be accurate and non-discriminatory meaning anything relating to a person’s age, gender, physical appearance, race or religion should be avoided.
To encourage as many suitable people as possible to apply, the UN Guiding Principles on Business and Human Rights (the global standard for addressing and preventing human rights impacts associated with business activity) recommends using a broad range of networks to advertise a job vacancy, such as mainstream media outlets, local newspapers, community forums and industry groups. You may also want to consider including a diversity statement that encourages people from different backgrounds to apply.
At a glance: Checklist for advertising a position
- Choose your words carefully. Make sure your job ad outlines the duties and skills required and draws a line between essential and desirable criteria. Also, avoid discriminatory language – references to personal characteristics such as age, race or sex – unless they are genuine requirements of the job.
- Re-read the ad before posting it to make sure it won’t offend anyone.
- Advertise through as many forums as possible to extend its reach.
- Limit your options by discouraging certain groups from applying.
- Use language that is restrictive or discriminatory.
- Assume others involved in the hiring process are aware of their obligations.
As a business owner, it’s important you understand your legal obligations in terms of providing equal opportunities in the hiring process.
By educating yourself and others about what’s acceptable behaviour, you can avoid discrimination complaints and establish a safer and more inclusive work environment for your employees.