The loopholes hirers use in recruitment

We all know that hirers can generally hire whoever they wish. They aren't required to provide a reason for the hire, at least in the private sector, and even if they are, they are unlikely to incriminate themselves in the reason they provide.

Ageism? Nah, you were just pipped at the post by someone with a little more tech experience.

Sexism? Nah, we were just looking for someone with the ability to commit to extra hours as needed on top of a full-time workload.

Racism? Nah, there was someone who was a better "cultural fit."

Disability discrimination? Nah, we were looking for someone with a driver licence.

There. Is. Always. A. Reason.

Of course, it can be the case that there was a person who was a better meritorious fit for the role, and that's fine, but we also see an awful lot of hiring decisions based on assumptions.

"Cultural fit" is one of those frustrating elements of the criteria that can trip a business up because they confuse cultural fit with "sameness". Many businesses like to hire what's familiar - I'm not talking about values here, but about physical appearance, ethnic background, racial heritage, gender, stereotypes, etc. This is not actually cultural fit, it's sameness, and it's a cop out that facilitates discrimination and causes businesses to miss out on potentially incredible hires.

Stereotyping does a lot of damage here. Assumptions made about people based on their attributes regardless of actual applicability leads to dangerous hiring practices that can land a business in hot water and cause individuals to miss out on opportunities they should have equal chance to be offered.

When I was a recruitment coordinator, I applied for a promotion that came up while I was pregnant. I went through the interview stage, and the recruitment team leader from the other branch on the interview panel said she wanted me, but it was given to someone with less tenure than I had. In the context of our branch manager constantly bemoaning the fact that his recruitment team constituted all 20-something women in relationships and reminded us all that he was worried about us getting pregnant and leaving, this could have been grounds for bringing a discrimination case as being a carer for a child is a protected attribute.

MORE ZOE WUNDENBERG:

However, this happened in 2008, and back then the onus was entirely on the complainant to prove discrimination. The Fair Work Act 2009 (Cth) extended the reverse onus of proof to include conduct preceding (ie recruitment processes) and during employment, meaning that if a prima facie case could be established, the burden of proof lies with the employer to prove that their conduct was not discriminatory.

This shift certainly made cases more possible for individuals on the pointy end of the discrimination stick, but it is a far cry from solving the problem.

There are still many issues to deal with. The definition of key terms in the Fair Work Act, for example, adds to uncertainty and complexity with regards to the scope of the protection. Furthermore, the term discrimination has not been defined in the Fair Work Act, or indeed, any federal legislation, meaning that courts must rely on the various states' interpretations of the term in their state-based legislation, which leads to a lack of consistency and conformity. In D H Gibson Pty Limited [2011], for example, Fair Work Australia relied on the Macquarie Dictionary definition.

The dramatic failure of the religious discrimination bill brought our current discrimination laws into the spotlight again, highlighting a fundamental principle of the need for anti-discrimination legislation to protect us: that one law should not permit lawful discrimination against a person, supposedly protected by another law.

However, the fact remains, that right now, federal legislation permits religious bodies to discriminate against those employed by an "institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed" (Fair Work Act 2009 (Cth) s 351(2)). Remembering that federal law trumps state law, we are still not safe.

I am not sure it's possible to be entirely safe from discrimination, but there is a lot of work still to be done to get us even close to a place where our vulnerable community members can feel less threatened on a daily basis.