Part 1: Selfie time – Video “Snaplications” and the potential for age discrimination in recruitment

We’ve all heard of “blind” recruiting, particularly in the early phases of the recruitment process, but what about the opposite? Actively recruiting based on a visual medium? Look no further than the “Snaplication.”

The Snaplication is an online video job application that can be made and submitted using social media app Snapchat. The Snaplication is the cornerstone of fast food giant McDonald’s latest recruitment initiative.

Snapchat users can open the McDonald’s’ Snaplication filter on the app, which pins a McDonald’s crew uniform onto the user’s image, and record a 10 second video about themselves and why they want to work for McDonalds. Users then forward the video directly to McDonald’s through Snapchat as the first step in the recruitment process.

Whilst the Snaplication is an interesting use of technology and a clever marketing tool, it also raises some interesting questions about the future of recruitment including issues around the ageing workforce, age discrimination and unconscious bias.

Age discrimination

Age discrimination in recruitment occurs when an employer treats a prospective employee differently than they would treat someone else of a different age in the same or similar circumstances, based on the prospective employee’s age.

Age discrimination is unlawful under a number of Australian laws including the Age Discrimination Act 2004 (Cth) (the AD Act) and the Fair Work Act 2009 (Cth) (the FW Act).

Under the AD Act, it is unlawful for an employer to discriminate against a person based on their age in:

   (i)   arrangements made for the purpose of determining who should be offered employment (i.e. the recruitment process);

   (ii)   determining who should be offered employment; or

   (iii)   the terms or conditions on which employment is offered.

This means that employers should not exclude prospective employees from the recruitment process based on their age.

Similarly, it is a contravention of the FW Act for an employer to take adverse action against a prospective employee because of their age. Adverse action in this context might include refusing to invite a person to a second interview or refusing to employ a person following an interview because of their age. 

However, instances of age discrimination in the recruitment process are not usually so clear cut.

Consider the Snaplication example, where neither McDonald’s nor Snapchat are directly discriminating against older prospective employees, but it is evident, by the use of Snapchat, that the target pool of applicants is younger people. The majority of Snapchat users are aged between 17 and 34, and McDonald’s openly prides itself on being one of the biggest employers of young people in Australia. The Snaplication is clearly not intended for Gen X or Baby Boomers, the most of whom sit largely outside Snapchat’s user base.

Then there is the unconventional video format of the Snaplication. McDonald’s would be expecting that Snaplications will mostly come from young people, so what will the reaction be to Snaplications from older prospective employees?

The platform of the Snaplication and the targeting of the process toward young people exclusively gives rise to some interesting discussion points including claims of unconscious bias.

Unconscious bias

Unconscious bias occurs when a person making a decision brings an unconscious preference for or against something when compared to something else – in this case, one age group over another.

Where unconscious bias towards a prospective employee based on their age occurs during the recruitment process, an employer can be liable for age discrimination.

In Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 075 the Queensland Supreme Court upheld a decision of the Anti-Discrimination Tribunal of Queensland that a group of former Ansett flight attendants were discriminated against by Virgin Blue Airlines during a group interview because of their ages.

The flight attendants successfully established that Virgin Blue’s assessors were influenced by unconscious bias against older applicants when applying the assessment criteria, which included assessing “Virgin Flair.” The flight attendants, all aged over 35, were awarded damages.

The target age group and visual format of the Snaplication may similarly allow for the creep of unconscious bias from those assessing the video applications, regardless of their best intentions.

Eliminating age discrimination from the recruitment process

The ideal way for employers to reduce the possibility of age discrimination in the recruitment process is to invite applicants of all ages to apply (promoting the business as an equal opportunity employer) and to assess applications against the essential requirements of the role and not against highly subjective or extraneous factors.

Employers should also ensure that there are no unreasonable barriers for prospective employees to overcome when applying for positions. On this point, we note that throughout the Snaplication initiative, McDonald’s have also maintained their traditional application processes giving prospective employees multiple avenues to lodge a job application.

Employers should not narrow their recruitment strategies to restrict the age range of applicants. Maintaining an open-minded recruitment strategy will not only reduce the risk of discrimination claims, but will also promote the best interests of the business. 

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 |

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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