How can employers in the education sector use ‘special measures’ to avoid discriminatory recruitment practices?

The media recently reported that the University of Melbourne has used a little-known section of the Equal Opportunity Act 2010 (Vic) to advertise jobs for female-only applicants, in an attempt to drive change in the male-dominated area of mathematics.

According to the University’s position description, ‘the School of Mathematics and Statistics is seeking to increase the representation of women in the academic workforce across mathematical disciplines… to lift the representation of women and therefore will only consider applications from suitably qualified female candidates for these 3 positions’.

The Equal Opportunity Act 2010 (Vic) prohibits discrimination in a number of areas of public life, including recruitment and employment. It is not widely known that section 12(1) of the Act permits ‘special measures’ (sometimes referred to colloquially as ‘positive discrimination’ or ‘affirmative action’). ‘Special measures’ permit discrimination in favour of certain groups of people with a particular attribute who may be suffering disadvantage. Part of the test to be applied requires the special measure (i.e. gender-specific jobs in this case) be justified because members of the group (in this case women) have a particular need for advancement or assistance in the particular area.

The approach taken by the University of Melbourne follows other employers who have sought permission to discriminate against a particular gender to advance disadvantaged groups. VCAT has approved a number of applications recently including:

  • Trafalgar High School – permitting the school to advertise for and employ a male-only Education Support officer for a paraplegic student;
  • AusNet Services – permitting Victoria’s largest energy delivery service provider to offer eight fully-funded scholarships to female applicants in the discipline of Power Engineering at Deakin University;
  • Plenty Valley Community Health – permitting the organisation to advertise for and employ only a woman in the role of Arabic/Persian interpreter.

When considering if a special measure might apply during a recruitment process, employers should seek advice and tread cautiously. Relevant statistics will be required to back up the need for a special measure. If a practice is not found to amount to a special measure, it would be discriminatory and therefore a breach of anti-discrimination legislation.