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Indirect Discrimination

Indirect Discrimination


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19/08/2020

What is discrimination?


The Victorian Equal Opportunity & Human Rights Commission states

‘When we talk about a person being discriminated against, it means they’re being treated badly or unfairly because of a personal characteristic that is protected by the law. The Equal Opportunity Act 2010 describes it as being treated “unfavourably”.’

You can find out more information on what is included in the Equal Opportunity’s Act and how it could effect you in your workplace here:

https://www.humanrights.vic.gov.au/for-individuals/discrimination/

 

What is Indirect Discrimination?


Indirect discrimination can come in many forms but the basic premise is if there is a rule in place that would disadvantage a group of people with the same attributes and these attributes are protected by the law as above, then this would be indirect discrimination.

 

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Indirect Discrimination in your organisation 


Looking at this from a recruiting point of view I will talk through some examples of how you may be indirectly discriminating against someone without even realising it.

Job Advertisement - Years of Experience 


In the world of HR and Recruitment most of the time we advertise new job roles on various platforms and these adverts usually follow a similar template with information taken from the position description:

  • Outline of the role and company
  • What skills and experience is required
  • Qualifications and working rights
  • How to apply

Now for the most part, employers would be aware of discrimination laws and it is unlikely that you would see an advert for a job that directly discriminated against people based on their age eg. ‘do not apply if you are under 25’. However we sometimes see cases of indirect discrimination with regards to age such as ‘must have 10 years experience in a similar role’.

By saying this, the employer is effectively saying that anyone under the age of 24 cannot do this position as 14 is the legal age you can start work in Australia. When we apply this more realistically, for someone to be in a role for 10 years and if they completed school or further study before entering the workplace you could say this employer won’t consider anyone under the age of 30 - maybe higher depending on how long study has taken then add even more years if you consider that the candidates most recent role is potentially not their first ever position.

So you see in the case of experience you must look at what is reasonable to ask for or how much experience would someone need to do this job. Often for a role that is not an entry level position employers would want experience of at least a year, this would be reasonable to ask for as you can assume if you have been in a role for a year you have passed the training period and have experience that would equip you to perform the role in another organisation.

If you are recruiting for a role and have been told the candidates will need 2, 5, 7 years of experience or any specific number for that matter you need to look at why. Sometimes this is purely because the hiring manager or whoever has entered the request for the role thinks that this is how many years you would need to be in the job to be good at it… this is of course indirect-discrimination. Think about the people you work with there is likely some people new in their roles that are excellent and some that have been in the position for years but aren’t necessarily a top performer. In some industries their may be specific requirements for length of time before being promoted to say a Team Leader, if this is the case then potentially the advert could ask for years of experience in one role if this is a step up however if you are not 100% sure that this is not discrimination then air on the side of caution. The job advert can say that experience is required just leave out any numbers.

 

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Job Advertisement - Qualifications and Working Rights 


Another key part of an advertisement or job description is qualifications and working rights. For some roles this is straightforward, and you can list specific qualifications that a candidate must have to perform the role other times there could be a number of suitable qualifications. As an example a company recruiting for a senior manager may put on their advert or position description ‘must have a Diploma of Leadership and Management’ this is something that could be challenged as there may be candidates that have experience and a different qualification maybe even a higher level that feel they cannot apply as they do not have this exact qualification. To alleviate the risk of discrimination here you can change the requirement to say ‘must have a Diploma of Leadership and Management or equivalent’ that way you are leaving it open so candidates with a different yet still valid can apply.

With regards to working rights something I have seen on advertisements is companies specifically stating that applicants on a visa cannot apply, this is too broad and may stop some people applying for the role that legally can. For example permanent resident visa holders have no working restrictions so they should be permitted to apply for any suitable roles. Every visa is different some you can work full time for an employer for 6 months others part time for 4 years and I am sure there are many other scenarios which may or may not meet to required ours of the role. To be safe you could write ‘you must have the right to live and work in Australia with no restrictions’.

 

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Job Advertisement - Company Culture 


Another thing to consider when writing an advertisement or position description is your language, probably the most common area this is an issue is when describing your company culture. Have you ever seen an advert that says ‘join our young energetic team’ now you may read this as the company is young or you may think it’s the people. If you don’t consider yourself as young would you apply?  This of course can work the other way around by replacing young with ‘mature’ again may be referring to experience but could be referring to age and this where language is so important as it is subjective you may not see this as a barrier for someone to apply however if they do then this could be deemed as discrimination.

Both in recruitment and ongoing management of staff there are a number of other ways in which people can be discriminated against, to make sure everyone that deals with your company is treated fairly ensure you review your anti-discrimination policy and training regularly. If you need help with this please contact KLC Recruitment to discuss our range of Human Resources Services (03) 9857 6756

 

Written By
Natalie Hinchsliff 


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