The NSW Administrative Decisions’ Tribunal has found that where selection criteria for positions disproportionately exclude members of a certain race, this may constitute indirect racial discrimination. This will be so regardless of the reason why a person or group of people cannot fulfil the requirement. Further, indirect racial discrimination can be found even where the selection criterion in question is not the reason an individual was rejected for a position.

Implications for employers

This decision highlights the importance for employers of understanding the practical consequences of imposing certain selection criteria. In particular, given the penalties and other consequences which may flow if a successful claim of racial discrimination is made, this case indicates that a court considering whether a certain requirement may fall foul of the prohibition on indirect racial discrimination will ask questions such as the following.

  1. Does the selection criterion exclude members of a certain race?

    To make this assessment, employers should first consider the pool of people to whom the position advertised is directed. The question is then whether members of the race concerned are able to meet the selection criterion less often than others. The reason that a person or group of people is unable to comply with the selection criterion is irrelevant.
     
  2. If the selection criterion does exclude members of a certain race, is this exclusion substantially larger than any exclusion of other races?

    It is not yet clear at what level a “substantially higher proportion” is triggered. In the case discussed, the selection criterion excluded all those from an Arabic background and none of those from a non-Arabic background. Cases will rarely have such forceful statistics. However, courts will usually take a common sense approach to such requirements so it is likely that lower proportions may still be considered sufficient.
     
  3. If exclusion of members of a certain race is found, is the selection criterion nonetheless reasonable in all the circumstances?

    The key question is whether the selection criterion is “appropriate and adapted” to the position described or whether the position can be performed successfully without imposing the discriminatory requirement. If the selection criterion is reasonable in all the circumstances, imposing it will be warranted and no indirect racial discrimination will be found.

Background

Mr Awad had worked as a rotating (rather than specialist) Grade 2 pharmacist in the employer’s Department of Pharmacy for a number of years. He applied for a Grade 3 position in March 2011, but was unsuccessful as he did not demonstrate the required communication skills.

Mr Awad brought a claim in the NSW Anti-Discrimination Tribunal (NSW ADT), claiming that the employer had demonstrated indirect racial discrimination because the selection criteria included a requirement that a candidate must have “demonstrated excellence in at least one clinical specialty practice”. Even though this criterion was not the basis for rejecting his application, Mr Awad was able to show that he would have been unable to comply with it. This was because, as a rotating pharmacist, it was (as the employer acknowledged) “very difficult” to demonstrate the required specialty excellence.

Decision

The NSW ADT, comprised of Magistrate N Hennessy, Deputy President, and two non-judicial members, Ms J Schwager and Ms J McClelland, found in favour of Mr Awad, concluding as follows.

  • The selection criterion excluded members of a certain race. Mr Awad, who was from an Arabic background, was excluded by the specialty practice criterion; that is, no person of an Arabic background held one of the 12 specialist Grade 2 positions in the Department, while four people of Arabic background held non-specialist positions.
  • The exclusion was substantially larger than any exclusion of other races. Within the relevant hospital “100% of people … from a non-Arabic background could comply with the requirement, while no-one from an Arabic background could comply”. This constituted a substantially higher proportion and, as such, the complaint of indirect racial discrimination was made out.
  • The selection criterion was not reasonable in all the circumstances. In selection processes for previous Grade 3 positions, applicants had not been required to comply with the speciality practice criterion. The Tribunal also remarked that “demonstrated excellence” in a relevant specialty was not necessary for a Grade 2 position; a “higher level of performance” was sufficient. Although a Grade 3 position included some more management responsibilities, the Tribunal held that this would not require “demonstrated excellence” in a specialty.

Mr Awad also made other allegations regarding direct racial discrimination and victimisation. The former were entirely dismissed, while some of the latter were found to be substantiated.

Awad v Western Sydney Local Health District [2013] NSWADT 287