Advertising a Role: Legal Dos and Don’ts

There are a number of statutes that regulate the recruitment and selection of employees. This legislation prohibits discrimination at every stage of the recruitment process in Australia.

The Sex Discrimination Act (SDA) makes it illegal to advertise a position which could discriminate on the grounds of a person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities. The SDA gives effect to the International Covenant on Civil and Political Rights which Australia has agreed to be bound by, with significant financial penalties imposed for breaching the Act.

The Fair Work Act prohibits the refusal to employ an applicant on the basis of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, political opinion, national extraction or social origin.

The Racial Discrimination Act (RDA) makes it unlawful to refuse employment to a person on the basis of race, colour, national or ethnic origin. Section 16 of the RDA specifically forbids all advertising which discriminates on these grounds.

The Age Discrimination Act prohibits employers discriminating against a person on the basis of that person’s age. Section 50 of the Act specifically precludes age discrimination in advertisements.

The Disability Discrimination Act makes it unlawful to refuse employment on the grounds of a person’s disability, unless the inherent requirements of the work (despite reasonable adjustments) would make it impossible for the applicant to successfully carry it out. The other exception to this rule is if avoiding discrimination causes an employer ‘unjustifiable hardship’. Section 7 of the Act also makes it unlawful to refuse to hire a person on the grounds that the person has an associate who has a disability.

Even a prior criminal record does not automatically disqualify an applicant from getting the job! In a matter before the Human Rights Commission (HRC) a government department had withdrawn an employment offer after learning of the applicant’s criminal record (namely traffic offences over a period of years). However, following HRC intervention in the matter, the department decided to restore their offer of employment.  

Employers may be vicariously liable should their employees be found guilty of discrimination, unless the employer “took all reasonable steps” to prevent the discrimination or “took reasonable precautions and exercised due diligence to avoid the conduct”. It is important to note that employers cannot just ‘wash their hands’ of responsibility and must take an active role in ensuring fairness, even at the advertising stage of a role.

To this end, employers should create a job description for their advertisement which outlines both the essential and desirable skills the new employee should possess. Unnecessary requirements such as age, gender, race, religion and sexual orientation could breach anti-discrimination laws.  There are exceptions to this rule, for example in an attempt to redress past inequalities or where only a certain type of applicant can fulfil the role. In advertising the position, care must be taken to ensure the widest pool of applicants is made aware of the job. Not only will this ensure compliance with the law, but it will allow employers to choose the most suitable candidate.

To ensure that your company is complying with all relevant legislation, or to discuss any aspect of business or personal law, contact Julia Adlem or Alisha Thompson at Adelaide Legal on (08) 8410 9494.

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Julia Adlem

Associate Lawyer