How to avoid hiring biases – and potential fines

By Anthony Wright

For the first time in Australia, the Victorian Government has announced it will trial removing personal details such as name, gender, age and location from job applications in order to rule out discrimination and unconscious bias.

This significant move by the government should serve as a reminder to businesses that if appropriate care isn’t taken when issuing job applications, the recruitment process can prove costly to both your reputation and bottom line.

Today it’s common practice for employers to use online application forms in the initial screening stage, however, many businesses aren’t aware of what they can and can’t legitimately ask applicants during this process. Creating online job application forms that adhere to anti-discrimination laws may seem like HR 101 but mistakes are not uncommon and even the biggest companies make seemingly obvious errors from time-to-time.

A major retailer recently learnt this the hard way when the application process for a position at a petrol station became the focus of a discrimination case. A job applicant alleged that the application form was discriminatory as it included mandatory fields that required candidates to provide their date of birth, proof of their right to work in Australia and gender.

Here’s a list of where this retailer went wrong, and how your business can avoid making the same mistakes.

Issue one: Date of birth

The retailer asked applicants to complete a field with their age, arguing that the question was necessary to determine whether applicants were above the age of 18, and to understand their entitlements. However, it was found unnecessary to collect this information during the online application stage, not to mention the retailer could have legally achieved the same objective by asking candidates to simply elect whether they were over the age of 18.

Issue two: Proof of right to work

The retailer’s online form made it compulsory for applicants to upload documents demonstrating their proof of right to work in Australia. In this case, the claimant did not have these documents on hand at the time of completing the form and therefore his ability to make the closing date for the position was jeopardised. Again, the employer argued that it was critical to know this information at an early stage to ensure that the applicant was in fact eligible to work. However, it was found that it was only necessary for the candidate to signify, and not substantiate, their belief that they were entitled to work in Australia.

Issue three: Gender

Whilst it is true that certain employers are obliged to capture statistics about gender under the Workplace Gender Equality Instrument, it is not permissible to make it a mandatory question during the application process. Instead of mandating this detail, the retailer should have given the applicant the option to disclose their gender or not.

At the end of the day, from initially advertising a position through to the selection of the preferred candidate, the recruitment process should be transparent and accessible and not present any barriers that could discourage people from applying. Employers need to be prudent when devising recruitment documentation to ensure all their communications comply with anti-discriminations laws and do not include requests for personal information that could be deemed unnecessary.

Anthony Wright is principal of on-demand law firm Lexvoco.