Hiring employees can raise a number of potential legal issues for employers and those involved in the recruitment process. Potential risks are inherent in all three basic stages of recruitment: advertising and interviewing, deciding who to employ and making the offer of employment.
A potentially problematic area during the process relates to the employer conducting him or herself in a way that may amount to unlawful discriminatory conduct.
The following guidelines will assist employers in avoiding discrimination issues when recruiting and selecting staff.
Ask the right questionsCommon issues for employers involve framing the right type of job advertisement and asking appropriate and relevant questions during an interview.
The advertisementIt is important for employers to:
- determine objective selection criteria for the particular job - this is appropriate to ensure job applicants are aware of the nature of the position, what information is relevant and how they should structure their application.
- ensure that their selection criteria should be related to the key qualities required to undertake the job. Matters such as age, gender, ethnicity etc. are not a legitimate part of the criteria.
- ensure that irrelevant, potentially unlawful or discriminatory statements are not made.
The interviewEmployers should ask questions that are relevant to the skills, abilities, experience and knowledge required for the particular position.
Common pitfallsEmployers should be careful in determining the types of questions that are asked during the interview process. Potentially discriminatory questions asked during an interview can create risks for employers, depending on how the information obtained is then used. Job applicants have no obligation to answer such questions, but inferences can be made by the job applicant regarding the reasons why such a question was asked.
For example, an employer may ask a female job applicant whether she has children as part of a ‘get to know you’ session. The job applicant however, may view the question as being motivated by a prejudice that working mothers are not able to commit fully to full time work.
Minimise the riskThe inference here could be minimised by rephrasing questions to minimise such inferences being made. For example, “This position requires interstate travel on at least a fortnightly basis. Are you able to perform overtime and spend regular periods of time away from home?”
Another common ‘pitfall’ for employers, particularly in dealing with job applicants who may have an illness or injury, is asking potential discriminatory questions on the basis of a person’s disability - such as ‘How many sick days did you take last year?’ or ‘Have you ever claimed Workers’ Compensation?’.
The inference here could be minimised by appropriately rephrasing the questions to determine whether the job applicant will be able to perform the requirements of the position, such as ‘This position requires heavy lifting for at least 4 hours per day. Are you able to do this?’
Making the recruitment decision Ensure that your selection decision is based on criteria for the position, and document objective reasons for the decision.
Just because you don't make a recruitment decision based on the information obtained from a potentially discriminatory question - for example, a question about a job applicant’s criminal record - is somewhat irrelevant. A job applicant may infer from the question that a discriminatory factor was taken into consideration when the employer made its decision regarding who should be offered employment, as may a discrimination tribunal.
If a job applicant is able to establish that the decision not to employ him or her was on the basis of a discriminatory factor, even if it is not the sole or main reason for the decision, this will be sufficient to establish discriminatory treatment (and a claim for compensation).
By documenting the objective reasons for your decision this will greatly assist to rebut any inference of discrimination.
Background checksEmployers should also be prudent in their use of background checks on job applicants, such as criminal record or credit reference checks, to determine whether the job applicant is suitable for the position.
For example, there are Federal and State discrimination laws which prohibit discrimination against a person on the basis of his or her criminal record. In some limited circumstances, employers may be able to argue a defence against this prohibition, such as the employee being unable to perform the inherent requirements of the position with a particular criminal history. An example of this would be if the position involved handling cash without direct supervision and the employee has a criminal record involving theft or fraud.
Reasonable accommodations Under State and Federal discrimination laws, an employer will also be required to consider what reasonable accommodations can be afforded to certain job applicants (such as those with disabilities) to assist them to perform the essential requirements of the position.
This may include facilities such as ergonomic furniture or speech recognition technologies. Unless the employer can demonstrate that providing such reasonable accommodations to the job applicant would cause the employer "unjustifiable hardship", the employer will be expected to provide such accommodations.