The anti-bogan furore: Can an employer lawfully discriminate against the rough and unkempt?
A recently published newspaper article discussing a job advertisement for a business in Western Australia specifying that “bogans need not apply” has caused controversy, both online and on television. Much of the public interest apparently stemmed from the issue whether the job advertisement was somehow contrary to Australian workplace laws that apply during the hiring process and unlawful. The “bogan” is an Australian stereotype deeply embedded in Australian culture by virtue of cult films like The Castle (1997), maligned by many, especially those who think it does not apply to them, while embraced by the few Aussies who care little about social etiquette and their personal appearance. A statement that “bogans need not apply” is not likely to be contrary to anti-discrimination law, but it would be better for those involved in the recruitment and selection of candidates to explain the genuine requirements of the position. If the job requires strong communication and customer service skills and the ability to promote the employer’s brand, the advertisement should explain this. The genuine requirements of a customer service position job might include, for instance,a clean and tidy appearance consistent with the employer’s brand. The “bogan” description is often associated with unsophisticated people of low social status and the use of the word “bogan” in an advertisement for a job may imply a focus or interest in the socio-economic background of the candidate, which whilst not unlawful, is irrelevant andinappropriate.
Today most employers recognise that diversity in job candidates and the organisation is to be encouraged and that people of different age, sex, and race contribute to the success of an organisation. People involved in the hiring process should avoid allowing myths and stereotypes to influence their decisions about whether to select a candidate, a point that has been emphasised by the Australian Human Rights Commission (AHRC). Those involved in the hiring process shouldinstead focus on the ability of the candidate to do the job.
Australian anti-discrimination laws aim to promote equal opportunity by preventing discrimination in a range of contexts. In the employment context, the laws prevent employers from discriminating on the basis of a person’s age, sex or gender, race, disability, and other characteristics.
Australian anti-discrimination laws apply during all stages of employment, including during the recruitment and selection process. Human resources professionals in the hiring organisation and external recruitment consultants must comply with employment law obligations. They must not unlawfully discriminate in the recruitment and selection process undertaken to fill jobs. This means discriminatory language should be avoided during all stages of the recruitment process, including in the advertisement and the process of selecting candidates.
When undertaking the recruitment process, it is important to be mindful of the specific requirements of the position. A position description can be helpful when advertising a job because it can link the advertisement to the employment vacancy. The position description can explain in clear language the genuine requirements of the job, any qualifications that are required, plus the experience job candidates must have to be suitable for the position. But employers need to ensure they do not unlawfully discriminate during the advertising process because discriminatory advertising is against the law and the consequences for people and organisations that breach the law may include fines.
If the employer is genuinely seeking to determine whether a candidate can meet the genuine requirements of a job the employer may not be engaging in unlawful discrimination. The employer may use medical, psychological and aptitude testing to determine whether a candidate is suitable for a position based on the specific requirements of the job. Where, however, the employer is seeking to obtain irrelevant information about a candidate’s private life or personality that has nothing to do with the ability of the candidate to undertake the genuine requirements of the position the employer may be engaging in unlawful discrimination.
About the author:
Kate Bretherton is a Perth lawyer and an Associate at Lynn & Brown Lawyers. Kate practices in the area of employment law. She is currently completing a PhD at UWA.