Although, in most cases, discrimination against prospective employees is against the law, in some circumstances the legislation will afford certain defences to employers who discriminate on certain bases. This is contrary to popular belief that any type of discriminatory behaviour, indirect or direct, is illegal. It should be clarified, however, that the legislation does not necessarily afford employers with the right to discriminate in particular cases, rather it formulates criteria that, when satisfied, exempts employers from anti-discrimination legislation. An exemption defence is not easy to prove, and each element must be satisfied for the defence to apply.

As such, if an employer wishes to raise a defence against its alleged discriminatory behaviour, it must show that its conduct was lawful in the circumstances. In these situations, the onus falls on the employer to show that its argument is valid and reasonable.

Exemptions to discrimination

While there is some variation between the permitted exemptions from state to state, there are certainly some broad and more general categories of exemptions that apply in all jurisdictions.

  • Indirect Discrimination

This type of exemption requires a thorough examination, usually by a Court, of all the factors involved in the behaviour of the employer, and a weighing exercise of the impact this conduct has had on the individual or group bringing the discrimination claim.

  • Inherent Requirement

The “inherent requirement” defence refers to discrimination based on age and disability and is made available under the following Commonwealth Acts:

    • Section 21(A) of the Disability Discrimination Act 1992; and
    • Section 18(4) of the Age Discrimination Act 2004.

If someone is unable to 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 assessing the applicant’s ability to complete the requirements of the role, the employer and the Court must make “reasonable adjustments”.

  • Genuine Occupational Qualification

Like 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 certain legislation. One such example would be the Sex Discrimination Act 1984 (Cth), under which section 30 allows for gender to be considered when making a decision about the suitability of candidates for a “position in relation to which it is a genuine occupational qualification” to be a certain gender. Other acts, such as the Racial Discrimination Act 1975 (Cth) do not contain such exceptions.

For example, a big-hipped person can be discriminated against in the hiring of flight attendants, as thinner hips are required to fit down the plane aisle.

What is ‘positive discrimination’?

In certain cases, preferential treatment will be given to disadvantaged groups within society. Certain sections aimed at ‘positive discrimination’ include:

  • Section 8 of the Racial Discrimination Act; and
  • Section 7D of the Sex Discrimination Act.

For example, following section 7D of the Sex Discrimination Act, employers are permitted to take positive steps to ensure that there is a more equal and fair basis upon which candidates are judged. Such factors include:

  • Gender;
  • Pregnancy and potential pregnancy;
  • Marital status;
  • Women who breastfeed; and
  • The level of family responsibility.

Conclusion

For those wondering whether an employer can discriminate against them in an interview or job hiring process, it is important to keep these exceptions in mind. If you believe you were treated unfairly in an interview and wish to get legal advice on how best to proceed, contact LegalVision on 1300 544 755 and speak with one of our experienced employment lawyers today.

Emma Jervis

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