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PRIVACY NEWSLETTER 5
Your Exposure To A Claim Under Anti Discrimination Laws Has Increased With The New Privacy Laws - Average Claim - $35,000.

The greatest risk to the employer from the new Privacy Laws is the disclosure of hitherto confidential internal documentation.

This information may be used to support claims of Discrimination, by the unsuccessful applicants.

Your Exposure To A Claim Has Increased

Regrettably, the simple allegation of discrimination may be enough to set in train a very time consuming and uncomfortable process for the employer. It is not only the potential financial penalties which can flow from the claim, but also the diversion of management resources to cope with the claim, which make this a very serious exposure.

Historically, ill-considered comments made or recorded during the recruitment process have remained confidential within company files.

Since December 2001, with the new Privacy Laws, unsuccessful job applicants have the right to see all information gathered and recorded about them in the process of considering their suitability for a position.

Under the Privacy Legislation you must inform all candidates that you have received information about them, what you are doing with it, how you will store it and how they can exercise their right to see that information.

As we know, for many positions there are 50 or more unsuccessful applicants. That is 50 exposures for the employer, all unhappy and all potential litigants.

(It is worth noting that if you are using an external Consultant, then your exposure is restricted to the number of candidates about whom you actually receive information, maybe 3 or 4. In this case, it is the Consultant who has the exposure)

Can you be sure that everyone in your hiring process is up-to-date on discrimination law?

For example, is it fully understood that writing someone's age on the candidates resume may constitute an offence of discrimination? To record information that could be used for discrimination can be an offence.

What Do The Anti Discrimination Laws Cover?

It is impossible to accurately summarise the areas covered by discrimination as they involve Commonwealth and individual State legislation. The list below is a summary of the areas where discrimination in the employment process can lead to an offence;


Sex Marital Status Disability Sexual Preference Medical Record Political Belief Employer Assn Activity Parental Status Physical Features Social Origin

Age Race Pregnancy Religion Criminal Record Union Activity Trade / Profession Family Responsibility Relatives & Associates

The specifics of how anti-discrimination laws apply to these issues can only be accurately defined with a review of the specific legislation.

Types Of Discrimination

Direct Discrimination is treating someone unfairly or unequally because they belong to a particular group or category of people (i.e. sex, race, age etc)

Indirect Discrimination is where there is a requirement (a rule, practice or procedure) that is the same for everyone, but which has an unequal or disproportionate effect or result on particular groups.

Unless this type of requirement is 'reasonable having regards to the circumstances' it is likely to be indirect discrimination - even if there was never any intention to discriminate.

Incidence Of Discrimination

At every stage of a recruitment there is an exposure to an allegation of discrimination. Similarly, all participants in the process are capable of exposing the company to such a claim.

Some generic examples:
• Position Descriptions - 'male and under 30'
  
• Job Advertisements - 'Aged between 25 - 30'
  
• Initial Screening Routines - 'exclude those over 30'
  
• Interviewing Questions - How old are you?
  
• Final Selection Criteria - 'Has the skills, but too old'
  


However, not all offences are this obvious and clear cut.

There Are Exceptions

There are exceptions to the general prohibition on discrimination in recruitment. These vary in each State so the appropriate legislation should be carefully checked.

Generally these exceptions apply in the following circumstances:
• Domestic work in the private home
  
• Jobs where a person's sex, age, race or physical features is an essential part of the job; in modelling for instance.
  
• Jobs where sex is a genuine occupational requirement of the employment; fitting clothes, security searches etc.
  

Protecting The Company Against Discrimination Claims

This is simple - do not offend in any of the potential areas of discrimination!

But how can you ensure that?:
• every participant in the recruitment process,
  
• at every stage of the recruitment process
  

knows what the laws are, and obeys those laws in both written and verbal contact with candidates and other participants?

There is no foolproof solution, however,

If you predominantly handle your recruitment in-house, with full privacy exposure to every applicant, say 50, then

The best answer comes down to the training of everyone in the hiring chain in the detail of the anti-discrimination legislation which applies in your state. Extensive material is available from each of the appropriate Government Departments in each State, and some are willing to provide training as well.

If you use a consultant to provide you with a shortlist of say 3 qualified candidates, then

Having reduced the privacy exposure down to only 2 or 3 candidates, whilst needing as much awareness about the discrimination legislation as possible, you will be much more able to control your exposure.

Summary Conclusions

1. The Privacy Laws have increased your exposure to Anti-Discrimination charges.
   
2. Refresher courses on discrimination laws should be put in place for all staff involved in the recruitment process.
   
3. You can minimise your exposure by using consultants to manage your recruitment assignments.
   

See ARS Recruitment Newsletter 6 for a summary of Anti Discrimination legislation by State.

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This publication has been prepared exclusively for the information of clients and consultants of ARS Recruitment and should not be relied upon as a substitute for legal advice. The owners and consultants of ARS Recruitment expressly disclaim all and any liability flowing from any act done or omitted to be done in reliance upon the whole or part of the contents of this newsletter