Employers should take care when advertising vacant positions to avoid discriminatory content that could result in discrimination claims against the Company and/or loss of reputation.
This issue recently arose when sportswear company Lorna Jane advertised for a “Receptionist / fit model” position on Seek.com. The advertisement listed a number of standard duties for the proposed receptionist’s duties, but then said:
In order to accurately provide feedback on Lorna Jane products in a size small you must have the following measurements:
HIP (at widest point): 97-100cm
HEIGHT: 165cm or taller.
The advertisement did not specifically state that the employer only required females, however the requirement to have a “bust of 87-90cm” indicated that it probably only wanted a female appointment. However, the position was presumably open to transsexuals.
The advertisement nevertheless caused a storm of controversy and the employer withdrew it after several days of criticism on facebook and other media outlets. That storm perhaps arose from similar actions by some international airlines that only wished to hire young female cabin crew of a particular height and build in order to attract customers.
The question is whether, in cases such as this, an employer can “discriminate” against potential candidates who do not “fit” the required specific features for the advertised role?
In most State, Territory and the Federal jurisdictions, it is not unlawful to discriminate against a person on their basic appearance and level of presentation or tidyness.
However, in Victoria, the Equal Opportunity Act 2010 (Vic) makes it unlawful to discriminate against a prospective employee because of their physical appearance. The Victorian Act does have general exceptions. These include:
- It is reasonably necessary to protect the health, safety or property of any person (including the person discriminated against).
- An employer may offer employment only to a person with particular physical features (including ‘looks’) in dramatic, artistic, entertainment, photographic or modelling performances or work.
- Participation in competitive sport may be lawfully limited to people who can effectively compete.That exception notwithstanding, in all State, Territory and the Federal jurisdictions, it is unlawful to discriminate against an employee or potential employee because of the following attributes:
- In Victoria, Lorna Jane may have been able to argue that the “Fit Model” position was a particular type of modelling (ie: for the purpose of trying garments to advise the manufacturer as to sizing).
- Sexual preference;
- Physical or mental disability;
- Marital status;
- Family or carer’s responsibilities;
- Political opinion;
- National extraction or social origin.
The most relevant subject matters applying to the Lorna Jane advertisement have been highlighted.
Lorna Jane stated in their advertisement that the “Fit Model” role required specific physical attributes in order to accurately advise of the fit of the clothing for a particular size of female (ie: small).
However, on the other hand, it can be reasonably argued that the duties of a stand alone receptionist position can be performed irrespective of size or sex or any of the elements of discrimination noted above.
The difficulty arises when the two roles (ie: “Fit Model” and Receptionist) are combined. Would the size attributes for the “Fit Model” also apply to the Receptionist elements of the combined role?
If the receptionist role took up 90% or more of the work of the role, then it is arguable that the “Fit Model” requirement for the role may have been discriminatory. At that percentage, Lorna Jane could easily have had other arrangements in place to deal with the duties of the “Fit Model”. However, if the “Fit Model” duties comprised 90% of the work of the role, then Lorna Jane’s exposure to risk would have been reduced.
Message for Employers
Some roles will require a particular attribute related to sex, size or build (such as the supervisors for male or female change rooms at public baths). But, as a general proposition, it is dangerous to advertise roles and require a particular physical attribute.
The employer’s key focus should be upon making merit based appointments.
It is about finding the right person for the right position.
Accordingly, all job advertisements should focus on the duties to be performed, the level of responsibilities, possible future development (if known) and most importantly key outcomes of the role. They should also focus on what attitudes and behaviours are required.