RCSA Reference Checking – Part 3 by RCSA

RCSA Reference Checking Manual PART THREE Information Gathering & Discrimination

Table of Contents Information Gathering & Discrimination Key Points.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4. General Exemptions

1. Introduction

Case examples. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Employer told not to post advert for ‘reliable’ workers because it discriminates against ‘unreliable’ applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.1 Focus.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.2 Approaching the Topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. Main Legislation

Table 1: Indicative Coverage.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Types of Discrimination

X. v The Commonwealth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Qantas v Christie.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5. Specific Exemptions

Table 3: Indicative Exemptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6. Unlawful Requests for Information

7. Further Applications

3.1 Direct Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.2 Indirect Discrimination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.3 Applications in suitability assessment and reference checking.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Table 2: Indicative Activities/Applications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.3.1 So what?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

Information Gathering & Discrimination Key Points • Candidate selection necessarily involves some form of discrimination. • Anti-discrimination law is concerned with preventing those selections from being made on the basis of unlawful criteria, which reflect bigotry or prejudice on the grounds of certain attributes of a person’s identity.

place and the information that you collect about candidates to ensure that you are not laying yourself open to a claim that you may be discriminating against candidates unlawfully; or that you are carrying forward some unlawful discriminatory agenda (consciously or unconsciously) which informs the client’s selection decisions (or the content of a referee’s report).

• Anti-discrimination law is concerned with preventing discrimination against a person in certain areas of activity because of who they are; rather than on the basis of what they are capable of doing.

• The anti-discrimination legislation of the various parliaments contains some general exemptions which apply almost “across-the-board”.

• Anti-discrimination laws operate on the basis that discrimination occurs whenever a person is treated less favourably because he or she possesses (or does not possess) one of the particular attributes on the basis of which it is unlawful to discriminate.

• In addition to the general exemptions, the anti-discrimination legislation of the various parliaments makes a number of specific exemptions – several of which exist having regard to social, cultural and community standards and expectations in those jurisdictions.

• Direct Discrimination involves less favourable treatment because of some attribute the person has or is believed to have. • Indirect Discrimination occurs when the less favourable treatment seems to be on the basis of a neutral characteristic (i.e. one which is not identified amongst the attributes on the basis of which it is unlawful to discriminate); but which has the effect of discriminating against those with a particular attribute that does fall within the protected class attributes.

• Several jurisdictions make it unlawful to seek information upon which unlawful discrimination could be based.

• Indirect discrimination would usually only be found where a person has acted unreasonably in imposing the facially neutral requirement. • Examine your recruitment and selection processes, including the job ads, that you

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

1. Introduction Candidate selection necessarily involves some form of discrimination. In order to find suitable candidates, it is often necessary to consider and filter out from the selection process candidates who are unsuitable – e.g. because: • they do not have the necessary intellect, skills, qualifications or experience; or • they do not possess necessary personal characteristics (e.g. they may lack of decisiveness; may procrastinate; may not be able to apply themselves in the manner required by the job; may lack motivation); • they may have proven themselves unreliable in some other work situations; or may be prone to exaggeration or lack candour. • there may be disqualifying criminal history; or history of professional misconduct. • they may not be able to meet essential work scheduling requirements; • they may be physically unsuited to the work due to disability; • they may lack necessary language skills; • they may lack personality, have poor fashion sense or simply not be a good fit with the culture of the workplace. All of these judgments, and more, necessarily involve a certain degree of discrimination. In most instances that is permissible. Nevertheless, recruiters and ad agencies get tangled up in this area because of uncertainty about what can be asked for and what cannot.

A good example comes from a reported UK recruiter’s experience:

Employer told not to post advert for ‘reliable’ workers because it discriminates against ‘unreliable’ applicants1 When it comes to hiring staff, there are plenty of legal pitfalls employers need to watch out for these days. So recruitment agency boss Nicole Mamo was especially careful to ensure her advert for hospital workers did not offend on grounds of race, age or sexual orientation. However, she hadn’t reckoned on discriminating against a wholly different section of the community - the completely useless. When she ran the ad past a job centre, she was told she couldn’t ask for ‘reliable’ and ‘hard-working’ applicants because it could be offensive to unreliable people. ‘In my 15 years in recruitment I haven’t heard anything so ridiculous,’ Mrs Mamo said yesterday. ‘If the matter wasn’t so serious I would be laughing out loud. ... A spokesman for the Campaign Against Political Correctness said: ‘This is absolutely ridiculous. ‘Of course people want reliable workers and employers should be able to ask for them. If they can’t advertise for what they want then the system is broken.’ The Equality and Human Rights Commission added: ‘This is in no way in breach of any discrimination law. ‘Mrs Mamo should consider very unreliable any advice that she may have received implying that this aspect of her advert was discriminatory.’ ... …Oddly enough, this is not the first time something like this has happened.2 1. By Ryan Kisiel and Andrew Levy, www.dailymail.co.uk/news/article-1246201/Employer-told-advertise-reliable-workers--discriminates-unreliableapplicants.html#ixzz0jWheTrah accessed 29 March 2010.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

2. Over-enthusiastic jobcentre boss champions the cause of the lazy, by Andrew Mullins, 7 June 2000 www.independent.co.uk/news/uk/this-britain/ overenthusiastic-jobcentre-boss-champions-the-cause-of-the-lazy-715337.html, accessed 29 March 2010 – “A jobcentre in Walsall has struck a blow for one of the world’s most undervalued groups - the lazy. Jobseekers who incline towards the idle can now saunter in, knowing they will not encounter the words that terrify them most - “hardworking” and “enthusiastic” These words, which contain a tiresome number of syllables for those who have honed their communication skills to a few simple grunts, are discriminatory, according to Jonathan Stevenson, the manager of the jobcentre.”

Anti-discrimination law is not, as its name might suggest, concerned with the preventing you from making those judgments. But it is concerned with preventing those judgments from being made on the basis of unlawful criteria, which reflect bigotry or prejudice on the grounds of certain attributes of a person’s identity as a human being such as sex; race; age; disability; and a clearly identified set of other attributes which differ from jurisdiction to jurisdiction.

1.1 Focus Anti-discrimination law is concerned with preventing discrimination against a person in certain areas of activity because of who they are; rather than on the basis of what they are capable of doing. It is thus concerned to preserve equality of opportunity in those areas of activity and contributes to the support of what are widely recognised as fundamental rights such as: • A right to work; • A right to religion and freedom of conscience; • a right to raise a family. The long title to Queensland’s Anti-Discrimination Act 1991, and the statement of Parliament’s purpose which accompanies it, provide a useful explanation of the relationship that exists between the recognition of fundamental human rights and the antidiscrimination law. The Act is described there as:

2. T his is reflected in a number of international human rights instruments that the Commonwealth has ratified, including • the International Convention on the Elimination of All Forms of Racial Discrimination • the Convention on the Elimination of All Forms of Discrimination Against Women • the International Labour Organisation Convention No. 111–Discrimination (Employment and Occupation) • the International Labour Organisation Convention No. 156–Workers with Family Responsibilities • the International Covenant on Civil and Political Rights • the Convention on the Rights of the Child • the Declaration on the Rights of Mentally Retarded Persons • the Declaration on the Rights of Disabled Persons. 3. T he Parliament is supportive of the Commonwealth’s ratification of these international instruments. 4. I n fulfilling its obligations under these international instruments the Commonwealth has enacted certain human rights legislation. 5. T he Parliament is satisfied that there is a need-(a) to extend the Commonwealth legislation; and (b) to apply anti-discrimination law consistently throughout the State; and (c) to ensure that determinations of unlawful conduct are enforceable in the courts of law.

An Act to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct. Parliament’s reasons for enacting this Act are 1. The international community has long recognised the need to protect and preserve the principles of dignity and equality for everyone.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

6. The Parliament considers that-(a) everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and (b) the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and (c) the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.

In Australia and New Zealand, the law achieves this, in the main, by legislation which: • Identifies attributes upon grounds of which a person may NOT be discriminated against; • Identifies areas of activity – such as employment – in which a person may NOT discriminate against another; • Describes what actions amount to discrimination – usually treating a person less favourably in one of these areas of activity (and perhaps in certain ways) because the person possesses (or does not possess one of those attributes); • Provides a set of general and specific exemptions – e.g. an act of discrimination may be exempt, even when based upon one of the identified attributes, if it is necessary to protect public safety or workplace health and safety; or in some cases, if a person does not possess one of the attributes that is an inherent requirement of the job; • Provides access to complaints handling processes and legal remedies in cases where unlawful discrimination is suspected and proven;

• Aims to redress systemic discrimination by requiring government and certain types of businesses to implement programs that may improve or enhance the range of opportunities that may previously have been closed to people because they possess one or more of the relevant attributes; • Ensures that people who may have been convicted of certain types of criminal offence have an opportunity, following successful rehabilitation, to start with a “clean slate”; • Protects the right of persons to associate freely with people who have (or might be assumed to have) one or more of the protected attributes. As you can see from this brief survey of the topic area, anti-discrimination law has a very broad coverage. It can appear overwhelming in its detail and in the subtlety and nuance of its applications – many of which can only be identified in the context of a specific case. It is probably true that the applications of anti-discrimination law are as varied as life itself.

• Provides protection against victimisation, vilification and harassment based upon the fact that a person has one or more of the protected attributes or has made a complaint about unlawful discrimination; • In some cases, makes it an offence to seek information which might be used for the purposes of unlawful discrimination; • Provides linkages between anti-discrimination legislation and employment legislation; • Provides a range of administrative measures aimed at allowing anti-discrimination authorities to grant situation specific exemptions;

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

1.2 Approaching the Topic What we aim to do in this chapter is: • Identify the main anti-discrimination legislation in each of the Australian and New Zealand jurisdictions and highlight the type of discrimination which they aim to prevent; • Explain the what discrimination is and the difference between the two main types of discrimination: »» Direct discrimination; and »» Indirect discrimination; • Highlight the main exemptions that operate - especially those relating to employment matters and recruitment;

• Identify a range of resources that will be of assistance in advancing your knowledge and developing policy in this area; As it is simply not feasible to do this by way of an extended discussion in a manual such as this, much of what is presented will be presented in table form or as a brief note to permit easy and quick reference. We will conclude with some discussion of a number of issues that commonly arise for recruiters in this area and we will look at what the RCSA Code for Professional Conduct says about it.

• Identify the provisions that make it an offence to seek information that might be used for purposes of unlawful discrimination;

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

2. Main Legislation The tabular summary of legislation presented here is extracted from CCH’s very helpful Australian & NZ Equal Opportunity Commentary paragraph [2-780], last reviewed 8 April 20143. As you work your way through it, be sure to pay particular attention to the way in which the different jurisdictions adopt different language. What is the difference between race and colour; nationality, national extraction, ethnicity and ethnic origin?

Jurisdiction & Legislation

Table 1: Indicative Coverage

This table is a general summary of discrimination, equal opportunity and human rights legislation in Australia and New Zealand. It is intended as a general overview only. The table lists the grounds contained in the legislation and the areas where conduct is prohibited. Note that not all grounds are prohibited in all areas covered by an enactment. Reference should be made to the full terms of the applicable legislation.

Grounds of Discrimination/other Unlawful Acts/Rights

Areas Covered

Administration & Decision Making

FEDERAL Workplace Gender Equality Act 2012

Requires higher education institutions and Workplace Gender Equality Agency employers with 100 or more employees to establish equal opportunity in the workplace programs

Australian Human Rights Commission Act 1986

Breaches of human rights by the Commonwealth and discrimination in employment on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin, age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference, trade union activity

Any human right in the Covenant and three Declarations in the Schedules, and discrimination in employment or occupation

President Australian Human Rights Commission, Human Rights Commissioner, Australian Human Rights Commission

Racial Discrimination Act 1975

Race, colour, descent, national or ethnic origin, being an immigrant (in certain circumstances), being a relative or associate of someone of a particular ethnicity or other status

Breaches of human rights contrary to the International Convention on the Elimination of All Forms of Racial Discrimination, equality before the law, access to places and facilities, land, housing and other accommodation, provision of goods and services, right to join trade unions, employment

President Australian Human Rights Commission, Race Discrimination Commissioner, Federal Court

Offensive behaviour based on racial hatred

Public act

3. Accessed 29th March 2010.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

Sex Discrimination Act 1984

Sex, sexual orientation, gender identity, intersex status, breastfeeding, sexual harassment, marital or relationship status, potential pregnancy, pregnancy, family responsibilities (employment only), victimisation

Work and work related areas, education, goods, services and facilities, accommodation, land, clubs, the administration of Commonwealth laws and programs, advertising, requests for information

President Australian Human Rights Commission, Sex Discrimination Commissioner, Federal Court

Disability Discrimination Act 1992

Disability, disability harassment, contravention of disability standards, incite doing of unlawful act or offences, victimisation

Work and work related areas, education, access to premises, goods, services and facilities, accommodation, land, clubs and incorporated associations, sport, administration of Commonwealth laws and programs, advertising, requests for information

President Australian Human Rights Commission, Disability Discrimination Commissioner, Federal Court

Age Discrimination Act 2004

Age, victimisation

Work and work related areas, education, access to premises, goods, services, facilities, accommodation, land, administration of Commonwealth laws and programs, advertising, requests for information

President Australian Human Rights Commission, Age Discrimination Commissioner, Federal Court

Fair Work Act 2009

Adverse action on the grounds of: race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.

Employment

The Fair Work Commission, Federal Court, Federal Circuit Court

Anti-Discrimination Act 1977 Race (including colour, nationality, descent and ethnic, ethno-religious or national origin), sex, pregnancy, status as a carer (work and work related areas only) marital status, disability, homosexuality, transgender, age, relative or associate of a person who is identified with one of the above attributes, sexual harassment, victimisation

Work and work related areas, education, provision of goods and services, accommodation, registered clubs, advertising

Anti-Discrimination Board, Administrative Decisions Tribunal

Public act

Anti-Discrimination Board, Director Public Prosecutions Administrative Decisions Tribunal, State Courts

NEW SOUTH WALES

Racial vilification, HIV/AIDS vilification, homosexual vilification, transgender vilification

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

VICTORIA Equal Opportunity Act 2010

Age, disability, industrial activity, lawful sexual activity, marital status, physical features, political belief or activity, pregnancy, breastfeeding, race, religious belief or activity, sex, status as a parent or carer, sexual orientation, gender identity, employment activity, personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes, sexual harassment, victimisation

Equal Opportunity and Human Rights Employment and employment related Commission, Victorian Civil and Administrative areas, education, provision of goods or services, disposal of land, accommodation, Tribunal clubs, sport, local government, advertising, request for information

Racial and Religious Tolerance Act 2001

Vilification because of race, religious belief, religious activity

Communication or conduct in public

Equal Opportunity Commission, Director of Public Prosecutions Victorian Civil and Administrative Tribunal, Victorian Courts

Anti-Discrimination Act 1991 Sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, association with, or relation to, a person identified on the basis of any of the above attributes, sexual harassment, victimisation

Work and work related areas, education, goods and services, superannuation, insurance, disposition of land, accommodation, club membership and affairs, administration of State laws and programs, local government, advertising, request for information

Anti-Discrimination Commissioner, Queensland Civil and Administrative Tribunal

Race, religion, sexuality, gender identity vilification

Public act

Anti-Discrimination Commissioner, Crown Law Officer Anti-Discrimination Tribunal, Queensland Courts

Equal Opportunity Act 1984

Sex, sexuality, marital status, pregnancy, race, age, sexual harassment, victimisation, chosen gender, caring responsibilities, disability, identity of spouse, association with a child, religious appearance/dress

Employment, employment related areas, education, land, provision of goods, services and accommodation, superannuation, advertising

Commissioner for Equal Opportunity, Equal Opportunity Tribunal

Racial Vilification Act 1996

Racial vilification

Public act

Director of Public Prosecutions, South Australian Courts

Sex, sexual orientation, marital status, pregnancy, breastfeeding, family responsibilities and family status, race, religious or political conviction, impairment, age, gender history, relative or associate of a person who is identified with certain of the above attributes, sexual harassment, racial harassment, victimisation

Commissioner for Equal Opportunity, State Work and work related areas, education, access to places and vehicles, provision of Administrative Tribunal goods, services and facilities, accommodation, land, clubs, advertisements, requests for information

QUEENSLAND

SOUTH AUSTRALIA

WESTERN AUSTRALIA Equal Opportunity Act 1984

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

Criminal Code Chapter XI

Racist harassment and incitement to racial hatred

Possession, distribution or display of written or pictorial material

Director of Public Prosecutions, Western Australian Courts

Spent Convictions Act 1988

Spent convictions

Employment

Commissioner for Equal Opportunity, State Administrative Tribunal

Industrial Relations Act 1979 Non-membership of an employee organisation

Employment

Industrial Relations Commission WA

Anti-Discrimination Act 1998 Race, age, sexual orientation, gender identity, intersex status, lawful sexual activity, gender, marital status, relationship status, pregnancy, parental status, breastfeeding, family responsibilities, disability, industrial activity, political belief or affiliation, political activity, religious belief or affiliation, religious activity, irrelevant criminal record, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes, conduct which offends, humiliates, intimidates, insults or ridicules another person on any of the prohibited grounds

Employment, education and training, provision of facilities, goods and services, accommodation, membership and activities of clubs, administration of state laws and programs (on certain grounds), awards, enterprise agreements and industrial agreements (on certain grounds), advertising

Anti-Discrimination Commission, AntiDiscrimination Tribunal

public act

TASMANIA

Inciting hatred on the grounds of: race, disability, sexual orientation, lawful sexual activity, religious belief or affiliation or religious activity

AUSTRALIAN CAPITAL TERRITORY Discrimination Act 1991

Sex, sexuality, transsexuality, relationship status, status as a parent or carer, pregnancy, breastfeeding, race, religious or political conviction, disability, membership or non-membership of an association or organisation of employers or employees, age, profession, trade, occupation or calling, association (whether as a relative or otherwise) with a person identified by reference to one of the above attributes, spent conviction, sexual harassment, victimisation

Work and work related areas, education, access to premises, goods, services and facilities, accommodation, clubs, requests for information, advertising

Discrimination Commissioner, ACT Civil and Administrative Tribunal

Racial, sexuality, transsexuality, HIV/AIDS vilification

Public act

Discrimination Commissioner, Discrimination Tribunal Director of Public Prosecutions, Courts

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

Recognition and equality before the law, right to life, protection from torture and cruel, inhuman or degrading treatment etc, protection of the family and children, privacy and reputation, freedom of movement, freedom of thought, conscience, religion and belief, peaceful assembly and freedom of association, freedom of expression, taking part in public life, right to liberty and security of person, humane treatment when deprived of liberty, children in the criminal process, fair trial, rights in criminal proceedings, compensation for wrongful conviction, right not to be tried or punished more than once, retrospective criminal laws, freedom from forced work, rights of minorities, education, human rights may be limited

Interpretation of territory laws, court may make a declaration of incompatibility, Attorney-General must present a copy of the declaration of incompatibility to the Legislative Assembly and prepare a written response, the Attorney-General must prepare a written compatibility statement about each bill, standing committee must report to the Legislative Assembly about human rights issues raised by bills

Human Rights Commissioner Attorney General Supreme Court

Anti-Discrimination Act 1992 Race, sex, sexuality, age, marital status, pregnancy, parenthood, breastfeeding, impairment, trade union or employer association activity, religious belief or activity, political opinion, affiliation or activity, irrelevant medical record, irrelevant criminal record, association with a person who has, or is believed to have, any of the above attributes, sexual harassment, victimisation, failure to accommodate special need

Education, work, accommodation, goods, services, facilities, clubs, insurance and superannuation advertising, requests for information

Anti-Discrimination Commissioner

Human Rights Act 2004

NORTHERN TERRITORY

NEW ZEALAND Human Rights Act 1993

Sex, pregnancy, childbirth, marital status, religious belief, ethical belief (lack of religious belief), colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, sexual orientation; or being a relative or associate of a person with any of these attributes; incitement to racial disharmony, victimisation, sexual harassment, racial harassment

Employment, partnerships, industrial and professional associations, qualifying bodies, vocational training bodies, places, vehicles, facilities, goods and services, provision of land, housing and other accommodation, education

Human Rights Commission, Office of Human Rights Proceedings, Human Rights Review Tribunal

Employment Relations Act 2000

Disadvantage, discrimination (on same grounds as Human Rights Act 1993 — see above), sexual harassment, racial harassment, duress in employment in relation to union membership

Employment

Employment Relations Authority, Employment Court

Equal Pay Act 1972

Terms of employment, conditions of work, fringe benefits, opportunities for training, promotion and transfers on the basis of sex

Employment

Employment Relations Authority, Employment Court

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

New Zealand Bill of Rights Act 1990

Life and security of the person, democratic and civil rights, nondiscrimination and minority rights, search, arrest and detention

Applies to acts done (a) by the legislative, executive, or judicial branches of the government of New Zealand, or (b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

Attorney General Courts

The legislation of the various parliaments prevents discrimination in different ways. The Racial Discrimination Act 1975(C’th), section 9 contains a broad prohibition against any racially based “distinction, exclusion, restriction, or preference that has the purpose or effect of impairing the recognition, enjoyment or exercise of certain rights for freedoms. Case example Baird v State of Queensland4. The State breached section 9 by funding a church agency to pay aboriginal workers’ wages below the award rate. The distinction was based on the fact of the workers’ aboriginality (race). Other anti-discrimination laws operate on the basis that discrimination occurs whenever a person is treated less favourably because he or she possesses (or does not possess) one of the particular attributes on the basis of which it is unlawful to discriminate. The less favourable treatment may be direct or indirect.

4 [2006] FCAFC 162.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

3. Types of Discrimination 3.1 Direct Discrimination Direct discrimination involves less favourable treatment because of some attribute the person has or is believed to have. Examples »» Refusal to shortlist anyone over the age of 35 (less favourable on the basis of age); »» Refusal to open applications postmarked from the Northern Territory because presumed to be from an aboriginal person or persons likely to associate with aboriginal people (real example!) (less favourable on the basis of race or assumed race; or association with people particular race).

3.2 Indirect Discrimination Indirect discrimination occurs when the less favourable treatment seems to be on the basis of a neutral characteristic (i.e. one which is not identified amongst the attributes on the basis of which it is unlawful to discriminate); but which has the effect of discriminating against those with a particular attribute that does fall within the protected class attributes. Example »» Job ads that required applicants to be more than 180 cm tall may have the effect of discriminating against women and people of various races because a substantially higher proportion of men and people of other races may be able to meet the requirement. In many cases there may be a good reason for imposing a particular requirement. Examples: »» People required to work in confined spaces - e.g. air crew - may need to be of less than a given height.

Indirect discrimination would usually only be found where a person has acted unreasonably in imposing the facially neutral requirement. Many workplaces may not have adjusted their facilities to cater for people with particular attributes. Examples »» Wheelchair access for those with a disability; »» Bathroom facilities for women; »» Job sharing for those with carers’ responsibilities. They might claim that it is reasonable to impose conditions requiring that job applicants be, respectively, able-bodied, male and without children (or elderly relatives). However, in most cases, the anti-discrimination legislation either imposes a positive obligation to make reasonable workplace adjustments; or only allows the ground of reasonable requirement to be raised if the making of workplace adjustments would impose unreasonable hardship upon the employer.

3.3 Applications in suitability assessment and reference checking Given that we now have an understanding of what discrimination is, let us look at some of its particular applications. These are set out in the following table where we describe the various areas of activity covered by the legislation in little more detail and extract some of the particular applications. NOTE: It is important to remember that the legislation differs from jurisdiction to jurisdiction and that it is always necessary to go to the source legislation to see what counts as unlawful discrimination in your jurisdiction. The table is presented to assist Members to identify the types of activity that might be captured by anti-discrimination legislation and to understand its relevance to activities carried out or conducted in connection with reference checking activities.

»» (given in Queensland’s legislation) is that people whose work requires them to fit women’s undergarments or to conduct body searches may need to be of the same gender as the person whom they are fitting or searching. RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

Table 2: Indicative Activities/Applications

Area Employment (Discrimination by employer or agent)

Activity • Arrangements made for the purpose of determining who should be offered employment. • Determining who should be offered employment. • Terms or conditions on which employment is offered. • Terms or conditions of employment that the employer affords the employee including work related conditions of superannuation etc. • Denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment. • Dismissing the employee. • Forced retirement. • Failing or refusing to grant a person seeking work access to a guidance program, vocational training program or other occupational training or retraining program; or in developing the scope or range of such a program. • Refusing the employee permission to carry out a religious practice during working hours, being a practice— »» of a kind recognised as necessary or desirable by people of the same religious conviction as that of the employee; and »» the performance of which during working hours is reasonable having regard to the circumstances of the employment; and »» that does not subject the employer to unreasonable detriment. • Segregating the employee from persons of other races. • Subjecting the employee to any other detriment.

Commission Agents

• Similarly

Contract workers

• Similarly

Employment Agencies (Recruitment)

• Refusing to provide the person with any of its services. • Terms or conditions on which it offers to provide the person with any of its services. • The manner in which agency provides the person with any of its services. • Treat any person seeking employment less favourably than other persons in the same circumstances. • Prevent, or to seek to prevent, another person from offering for employment or from continuing in employment (race). • Any other detriment.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

3.3.1 So what? With this much information you can now examine your recruitment and selection processes, including the job ads, that you place and the information that you collect about candidates to ensure that you are not laying yourself open to a claim that you may be discriminating against candidates unlawfully; or that you are carrying forward some unlawful discriminatory agenda (consciously or unconsciously) which informs the client’s selection decisions (or the content of a referee’s report).

4. General Exemptions The anti-discrimination legislation of the various parliaments contains some general exemptions which apply almost “across-the-board”. These would include: • Discrimination to give effect to affirmative action programs (“reverse discrimination”); • Discrimination according to genuine occupational requirement/inherent requirements of job; • Discrimination in the interests of public health and safety –e.g. not permitting a person who has a communicable disease to work in food handling if the disease may be spread by contact with food; • Discrimination in the interests of workplace health and safety. Case examples X. v The Commonwealth5 »» The Australian High Court held that it was lawful to discriminate against soldiers who may have battle duties on the grounds of HIV status because it was a “genuine occupational requirement” that soldiers should be able to “bleed safely”.

5. Specific Exemptions In addition to the general exemptions, the anti-discrimination legislation of the various parliaments makes a number of specific exemptions – several of which exist having regard to social, cultural and community standards and expectations in those jurisdictions. These are often not as comprehensive in their coverage as they might at first appear. The grounds of exemption may frequently be difficult to establish on the basis of cogent and admissible evidence. Examples may include exemption of certain acts of discrimination based upon religion. Example (Religion) »» Some jurisdictions permit discrimination on the basis of religion in the case of hospitals or schools run by religious organisations in order to avoid causing offence to those who hold to the tenets of a particular religion. Given the scope for theological differences and variability in tolerance levels, even amongst adherents of the same religion or denomination, an exemption on this ground may be difficult to prove in many cases. Some common exemptions in the various jurisdictions are identified in the following table. NOTE: Remember that the legislation differs from jurisdiction to jurisdiction. It is always necessary to go to the source legislation to see what counts as unlawful discrimination in your jurisdiction. The table is presented to assist Members to identify the types of activity that might be captured by anti-discrimination legislation and to understand its relevance to activities carried out or conducted in connection with reference checking activities.

Qantas v Christie6 »» It was held that a policy that that only pilots below the age of 60 could work certain air routes did not discriminate unlawfully on the basis of age; because it was a genuine occupational requirement, based upon air traffic regulations in some foreign countries on those air routes that planes could not be flown by pilots over the age of 60. RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

5. (1999) 200 CLR 177. 6. (1998) 193 CLR 280.

Table 3: Indicative Exemptions Exemption

Youth wages

Commentary/Application

Exemption

• In the arrangements made for the purpose of determining who should be offered work; or

Residential care of children

• Usually where the position involves the care of a child where the child lives

• In determining who should be offered work; or

Single sex accommodation

• May be qualified by

• In payment, or offer of payment, of remuneration for work. Positive discrimination • A bona fide benefit to persons of a particular attribute. Religious bodies

»» is necessary to avoid injury to the religious sensitivities of adherents of that religion. • Reliance on actuarial data etc. Superannuation, insurance and credit-

»» the supply of separate sleeping accommodation for people of each sex would impose unjustifiable hardship on the first person. Workers are to be married couple

• In many instances the law had to be in effect at the time of the passing of the relevant discrimination legislation.

• Primarily intended to: Government employment programs »» improve the prospects of participants getting employment; or • Usually for the notification and prevention of spreading of communicable disease. • Also to ensure public safety as regards equipment operation etc. Genuine occupational requirements

• The focus is on the genuineness of what is stated to be an occupational requirement.

Domestic duties

• E.g. on various grounds in a person’s own home.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

• With respect to some matters where: »» the work is for one of 2 positions that the person wants held concurrently by a married couple or by 2 persons each of whom is the de facto partner of the other; and »» the workers are required to live in accommodation supplied by the person.

Political employment

• An aspect of “genuine occupational requirement where a ministerial adviser, member of staff of a political party, member of the electorate staff of any person or any similar employment

Welfare employment

• An employer may sometimes limit the offering of employment to people with a particular attribute in relation to the provision of services for the promotion of the welfare or advancement of people with the same attribute, if those services can be provided most effectively by people with that attribute. Example could be counselling to ethnoreligious group. The criteria as regards most effective provision may be difficult to prove.

»» increase workforce participation; Public Health & Safety

»» the accommodation is not equipped with separate sleeping accommodation for people of each sex; and »» (the accommodation is already occupied by a person or people of one sex and is not occupied by anyone of the opposite sex; and

• An act or practice of a body established for religious purposes that: »» conforms to the doctrines, tenets or beliefs of that religion; or

Direct compliance with laws, orders etc.

Commentary/Application

6. Unlawful Requests for Information Several jurisdictions make it unlawful to seek information upon which unlawful discrimination could be based. Example »» It may be unlawful to ask job applicants about their age, gender or to request a photograph from which certain attributes (e.g. colour; age; gender; and, depending on items of clothing or jewellery, nationality, religion etc.) may be inferred. Legislative Example: Queensland s.124 »» (1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. »» (3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination. Legislative Example: New Zealand s.23

Whether, having regard to the genuine occupational requirements (inherent job requirements) the candidate has a current or pre-existing disability, illness, injury or condition: • that may be aggravated by the work, • that might prevent the candidate from doing the work, • that might compromise the candidate’s ability to work safely; or • that might pose a risk to the public health and safety. Such question, as you can see, is framed having regard to the general exemptions that we have previously discussed. However, it assumes that you will actually know what the requirements of the work truly involved, that they are genuine, and that you will have informed the candidate of them. This will necessarily require you to have undertaken conscientious and detailed scoping of the job with your clients.

»» It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22 of this Act (prohibition against unlawful discrimination in employment). It may also be an offence in some jurisdictions to seek information about a person’s WorkCover history otherwise than strictly in accordance with governing legislation and for the purposes for which the collection of such information is permitted. In the absence of specific legislation such a request, interrogation or inquiry may also constitute a ground of discrimination on the basis of disability or prior medical history. We do not think that a question about whether the candidate has ever made a WorkCover claim is well formulated in any event. The reason is that the person may not have had a WorkCover claim; but may still possess a relevant disability sustained in a skiing accident, rugby match or prior to undertaking employment. A better question to ask could be:

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

7. Further Applications We state these as a set of principles developed in response to questions we are often asked by Members when we are presenting on this topic. They are generalisations and therefore ought not to be accepted as complete statements of legal principle; but they may help to provide further elements in the framework that you develop for handling issues about discrimination when they arise. Here they are. 1. Motivation does not matter. It is no defence to say that you discriminated against a candidate for his/her own benefit because the blokes at the worksite were a bit rough; or because they might not welcome a foreigner, woman, older person, indigenous person, person with a disability etc., etc., etc. It is the role of management to create a discrimination free workplace. 2. Do not get involved in masking, concealing or covering up dirty work of discrimination that your client might ask you to do. The request to do it may not be explicit; it may often accompanied by various nods and winks – you know what we mean! You will expose yourself and your agency to accessorial liability in any claim. In some jurisdictions you will be liable for contraventions of employment agency legislation as well as Anti-Discrimination legislation. 3. Whenever you tell a candidate that they were unsuccessful because “there were other more suitable candidates” make sure that they were not “more suitable” on the grounds of some unlawful discriminatory consideration. 4. Beware of photographs – a lot of information can be gleaned from a photograph – much of it may form the basis of unlawful discrimination. 5. Beware of “culture” or workplace environment that is formed on the basis of discriminatory assumptions or practices. The “hostile environment”, “glass ceiling” etc. needs to be detected early.

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination

6. Even the best run organisations make mistakes sometimes. A large iron and steel plant inadvertently breached the indirect discrimination provisions, when it applied a reverse gate policy which it had negotiated with the unions in the course of managing a redundancy situation. Prior to the redundancy it had been implementing an equal opportunity programme to redress systemic discrimination against women. As the women’s representation amongst the group being laid off was proportionally higher, the plan was seen to have indirectly discriminated against women. 7. An employer is vicariously liable for the discriminatory acts of its employees if it has not taken reasonable steps to prevent the discrimination in the workplace. It might also be vicariously liable for the discriminatory actions of its (employment) agents over which it exercises significant control. But that will not help the agency to avoid responsibility. 8. Make sure you understand what the job really requires and reference check against the true requirements of the job. 9. There is often a reasonable alternative (and one that does not impose unnecessary hardship) when it comes to what are represented as “genuine occupational requirements”. Find it! 10. If you reckon you need those birthdates because you like to send birthday cards make sure that you have plenty of birthday cards in your stationery cabinet and that your postal record shows that you have been sending them out. These things are often tested on the basis of objective evidence. And why do you need year of birth if you only want to send birthday cards? Do you perhaps send special milestone cards?

11. Do not imagine that they will never be able to prove it. In many cases a reverse onus of proof may apply and proof can be established on the basis of fair inference drawn from all the available evidence. If you have said that there were other more suitable candidates – be prepared to have to disclose evidence of all your candidates. Example: In Waters v Alpine Energy (Ltd)7 the applicant, a 62 year old man, who claimed he had been discriminated against when applying for work sought access to documents held by the recruitment agency retained by Alpine Energy to assist in finding an ideal candidate for one of the two positions in question. Access was granted on his undertaking to preserve confidentiality. 12. If in doubt – ask. Remember the RCSA Code places a high responsibility upon Members to conduct their practices in a manner that requires them to “observe a high standard of ethics, probity and professional conduct which requires not simply compliance with the law; but extends to honesty, equity, integrity, social and corporate responsibility in all dealings and holds up to disclosure and to public scrutiny.”

7. (Discovery) [2014] NZHRRT 8 (20 February 2014),

RCSA Reference Checking: Part 3 – Information Gathering & Discrimination