The balancing act: Positive discrimination in the workplace

Across the world, issues of equality and justice have taken centre stage recently. We are experiencing a time of increased awareness about the need to redress past discrimination and prejudice towards many minority groups.  

In the employment context, that impact of discrimination and prejudice is most clear when looking at the under-representation of certain groups in particular industries and positions. In response, many employers are making it a goal to rectify those imbalances within their own companies and promote equality moving forward.

In most cases, this involves a particular focus on employing people with a certain attribute such as race, gender or age (as distinct from employing people solely on merit, experience and/or skill). Such measures are more commonly referred to as “positive discrimination”.

The general position in Australian law is that discrimination in any form against a person, which is due to certain protected attributes, is considered to be unlawful. So, it follows that “positive discrimination”, notwithstanding its best intentions, can still be considered unlawful discrimination.

The obvious risk then is that by attempting to rectify these imbalances, employers remain open to claims alleging discrimination. Many employees or unsuccessful job candidates may feel that they are being discriminated against because they do not possess a particular protected attribute. On the other hand, successful job candidates may be unwilling to accept a job if that job was offered to them, not because of their skills and merit, but because they were a particular race, gender or age.

Take, for example, an employee recently dismissed by Google in the USA who has now alleged discrimination by his former employer. At the time of his dismissal, we wrote a blog article commenting on the circumstances of his termination. The dismissed employee now claims that Google is using illegal hiring processes to employ more women and minorities and is “openly denigrating” male and Caucasian employees.

In Australia, most Federal and State anti-discrimination laws provide exemptions for those who implement “special measures” to rectify previous disadvantage to a particular group and promote substantive equality.

For instance, the Racial Discrimination Act 1975 (Cth) states that “special measures” taken to redress a historical disadvantage experienced by minority racial groups (which would ordinarily amount to discrimination) will not be considered unlawful under that Act.

The exact operation of these exemptions differs between legislation and between States and Territories. In NSW, employers need to apply for a specific exemption from anti-discrimination laws prior to engaging in these types of special measures.

In order to prevent these issues spiraling out of control and to minimise the risk of discrimination claims, employers should:

  • Develop and communicate the company’s clear position in relation to discrimination, equality and positive discrimination. For instance, a Code of Conduct that states the company is dedicated to “promoting substantive equality” or “diversity” is an indisputable record available to employees, customers and anyone else who comes into contact with the company, demonstrating what the company stands for.

  • Be frank with employees and job candidates if “special measures” are being taken in the recruitment process and the reasons for doing so. Employees and job candidates are of course entitled to their own views on equality and positive discrimination but where those views are incompatible with the company’s values, a long lasting or productive employment relationship may be challenging.

  • Utilise the legislation. Australia’s anti-discrimination laws contain protections for employers who seek to address imbalances in the workplace and employers should be aware of these protections and the correct processes to follow.

In a recent case before the ACT Civil and Administrative Tribunal (Macca v Australian Capital Territory represented by Emergency Services Agency (Discrimination) [2017] ACAT 101), the Tribunal heard a complaint from an unsuccessful job candidate that the ACT Fire and Rescue was unlawfully discriminating against men by setting a target of offering 50 per cent of available roles to women.

In finding that this strategy was a “special measure” under the Discrimination Act 1991 (ACT) and therefore not unlawful, the Tribunal senior member commented that the purpose of that Act was to promote substantive equality and remove or redress disadvantages or barriers in recruitment.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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