Law-abiding recruitment ads

Meeting the requirements of anti-discrimination legislation starts with the ad you write to recruit candidates. There’s a range of issues to consider, as solicitor Simone Szalmuk-Singer points out.

Drafting and designing job advertisements is legally perilous for employers and recruitment consultants. Advertising job vacancies is one of the most common ways in which employers notify people that a job is available, but many employers are unaware of their legal obligations with respect to recruitment advertising. Federal and state legislation prohibit discrimination in recruitment advertising. It is prudent for anyone who is involved in recruitment to be aware of anti-discrimination laws and their effect on advertising.

Unlawful grounds for discrimination

Discrimination can be direct or indirect. Direct discrimination refers to treating a person with an identified attribute or personal characteristic less favourably than a person who does not have the attribute or personal characteristic. Indirect discrimination refers to the imposition of an unreasonable requirement which most people can comply with, but with which a group of people with a particular attribute or personal characteristic cannot comply.

Although varying from state to state, the grounds on which it is unlawful to discriminate against a person include:

• sex
• disability/impairment
• marital status
• race
• age
• pregnancy and potential pregnancy
• political and religious belief or activity
• status as a parent or carer
• physical features
• sexuality, such as male or female homosexuality and transexuality
• industrial activity
• irrelevant medical or criminal record (NT only)
• breast-feeding (NT only)
• personal association with a person who has any of these attributes

"Advertisement" is broadly defined under all legislation as including anything that is generally recognised as advertising such as a notice, sign, billboard, label or circular. An advertisement can be handwritten, printed, published on the Internet or broadcast on television or radio.

Accordingly, advertisements should be checked to ensure that the wording or any visuals (pictures or graphics) are not discriminatory or indicative of an intention to discriminate.

Liability

The following people or organisations may be liable for a discriminatory advertisement.

• Those who advertise for someone to work, eg an employer.
• Those who assist employers with recruitment, eg a recruitment agency.
• Those who publish a recruitment advertisement, eg newspaper publishers, Internet site hosts.

Exceptions

There are exceptions to the general prohibition on discriminatory recruitment advertising. These vary in each state so the appropriate legislation should be carefully checked. Generally these exceptions apply to the following circumstances.

• Domestic work in the private home.
• Jobs where a person's sex, age, race or physical features is an essential and relevant part of the job. For instance, in drama, entertainment and modelling.
• Where sex is a genuine occupational requirement of the employment. For example, in order to protect privacy it may be a genuine occupational requirement for people of one sex to be employed in jobs which involve fitting clothes, searching people, or entering lavatories or change rooms.
• Jobs established to help specific groups who have been disadvantaged in relation to employment in the past, for instance, traineeship schemes.

Useful words

The primary way to reduce exposure to a discrimination complaint in relation to an advertisement is to ensure that the terms used in the advertisement are appropriate.

The Victorian Equal Opportunity Commission advertising guidelines Making Your Message a Fair One,provide examples of lawful terms which should be used in place of terms which may indicate an intention to discriminate.

In addition, employers and recruitment agencies should carefully consider and describe the type of skills being sought to perform a particular job. Relying on stereotyped characteristics will no longer be tolerated. To this end, all staff involved in recruitment should be trained about their obligations under anti-discrimination legislation and how to identify the mix of skills required to perform a particular job. Such training may reduce the likelihood of inappropriate advertisements being drafted as well as provide a defence to an employer or principal who may otherwise be held liable for the actions of its employees or agents.

Finally, people or organisations who publish or display recruitment advertisement should check advertisements are not discriminatory and, when issuing printing instructions, issue regular reminders of anti-discrimination law obligations.

This article is intended to provide general information in summary form on employment-related issues. The contents do not constitute legal advice and should not be relied upon as such.

by Simone Szalmuk Singer