Generally, discrimination against prospective employees is against the law. However, in some circumstances, the law affords defences to employers who discriminate on certain bases. This is contrary to popular belief that any discriminatory behaviour, indirect or direct, is illegal. However, it should be clarified that the law does not necessarily grant employers a positive right to discriminate in particular cases. Instead, it provides exemptions for employers from anti-discrimination legislation. This article will explain the statutory exemptions that may cover discrimination against potential employees.
Exemptions to Discrimination
In certain circumstances, there are exemptions to anti-discrimination legislation. However, it is essential to note that an exemption defence is not easy to prove, and you must satisfy each element for the defence to apply.
While there is some variation between the permitted exemptions from state to state, some broad and more general categories of exemptions apply in all jurisdictions. These are outlined below.
Indirect Discrimination
Indirect discrimination is when an unreasonable rule is applied to everyone but unfairly impacts people with a particular shared attribute. For example, staff who are required to work onsite in a building that is not disability-friendly would be considered indirect discrimination.
Exemption from indirect discrimination will require a:
- thorough examination of all the factors involved in the employer’s behaviour; and
- weighing the impact of this conduct on the individual or group bringing the discrimination claim.
For example, suppose the only reason the potential employee has to work onsite is that you prefer your employees not to work from home. In that case, this is unlikely to be a reasonable defence for indirect discrimination.
Inherent Requirement
The inherent requirement defence refers to discrimination based on age and disability. If someone cannot satisfy the inherent requirements of a position, the employer may have grounds to disregard an applicant on that basis.
These exceptions are not concrete in that there is usually some requirement to assess the capacity of the individual to perform the so-called inherent requirements. Upon determining the applicant’s ability to complete the requirements of the role, you must consider whether reasonable adjustments could be made to the position that would allow the individual to perform the inherent requirements of the role.
Genuine Occupational Qualification
Similar to the inherent requirement exception, this exemption refers to occupations where discrimination is reasonable in the context of the role. This exception is a general exception to discrimination and is available under specific legislation.
One such example would be the Sex Discrimination Act, which allows you to consider gender when deciding the suitability of candidates for a “position in relation to which it is a genuine occupational qualification” to be a specific gender. Other acts, such as the Racial Discrimination Act, do not contain such exceptions.
For example, a big-hipped person can be discriminated against in hiring flight attendants, as thinner hips are required to fit down the plane aisle. Similarly, an employer may limit the offering of employment to people of a specific gender if it is a requirement of the employment that the employees be of a particular gender.
What is ‘Positive Discrimination’?
In some instances, preferential treatment will be given to disadvantaged groups. Known as ‘positive discrimination’, this refers to actively taking measures to foster greater equality amongst historically disadvantaged groups.
For example, under the Sex Discrimination Act, employers are permitted to take positive steps to ensure a more equal and fair basis upon which candidates are judged. Such factors may include:
- age;
- gender;
- pregnancy and potential pregnancy;
- marital status;
- women who breastfeed; and
- the level of family responsibility.
Whether it’s your first hire or your fiftieth, this guide will help you understand the moving parts behind building a high-performing team.
Key Takeaways
In certain circumstances, there are exemptions to anti-discrimination legislation when hiring potential candidates. However, it is essential to note that this is not easy to prove, and as an employer, the onus will be on you to demonstrate that discrimination in the hiring process was reasonable. Some of the main exemptions that exist include:
- inherent discrimination;
- the inherent requirement defence; and
- genuine occupational qualification.
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Frequently Asked Questions
In certain circumstances, there are exemptions to anti-discrimination legislation when hiring potential candidates. However, these defences are not easy to demonstrate, and the onus is on the employer to prove that discrimination in the hiring process was reasonable.
Positive discrimination refers to actively taking measures to foster equality amongst disadvantaged groups. This may be based on age, gender, pregnancy or marital status. For example, you may take positive action to ensure a more equal and fair basis upon which candidates are judged.
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