Requirement to supply date of birth, gender and evidence of right to work in Australia held to be discriminatory
The Queensland Civil and Administrative Tribunal (QCAT) has found that Woolworths Ltd’s online job application form was discriminatory and ordered Woolworths to pay compensation of $5,000 to a potential job applicant in respect of his embarrassment, humiliation and loss of a chance.
Background
In December 2013, Woolworths advertised a position for a console operator at a petrol outlet in Beerwah.
The applicant, Steven Willmott, was a resident of Beerwah and considered he had good prospects of being selected for the position.
Mr Willmott commenced work on submitting an online job application form but ultimately did not complete or submit the application form because he was ‘sickened beyond belief’1 at several questions within the application form.
The offending questions were mandatory fields requiring applicants to:
- Supply their date of birth;
- Select one of the following options regarding gender: No Selection, Female or Male; and
- Upload evidence of their right to work in Australia (for example a copy of an Australian birth certificate, passport or work visa).
Anti-Discrimination Act
The Anti-Discrimination Act 1991 (Qld) (ADA) prohibits discrimination on the grounds of certain attributes, including sex,2age,3 race,4 and gender identity.5
In addition, s 124 of the ADA provides that ‘a person must not ask another person, either orally or in writing to supply information on which unlawful discrimination might be based’.6 Defences are available if the information requested is ‘necessary to comply with, or is specifically authorised by…an existing provision of another Act’,7 or if ‘the information was reasonably required for a purpose that did not involve discrimination’.8
Woolworths’ case
In relation to the requirement that job applicants supply their date of birth, Woolworths argued that this information was reasonably required for purposes that did not involve discrimination including:
- Determining employee entitlements, noting that wage rates differ for employees under the age of 21;
- Differentiating between employees with the same name, noting that Woolworths employs approximately 190,000 employees; and
- As a means of ensuring that employees were over the age of 18 for certain positions including at BWS liquor outlets.
In relation to the requirement that job applicants nominate a gender, Woolworths argued that this information was necessary to comply with Woolworths’ obligations under the Commonwealth’s gender equality reporting framework.
As for the requirement that applicants upload evidence regarding their entitlement to work in Australia, Woolworths argued that this information was necessary to ensure compliance with the requirements of the Migration Act 1958 (Cth) (Migration Act).
The Tribunal’s findings
QCAT acknowledged that, in circumstances where Woolworths received applications from approximately 670,000 applicants every year, the questions would serve as a useful screening tool prior to the interview stage.
The Tribunal further acknowledged that the information requested by Woolworths was required for those people whose job applications were ultimately successful.
However, QCAT held that:
- To the extent that Woolworths required employees to be over 18 for certain positions, Woolworths ought to have simply required applicants to tick a box confirming they are over 18 and provided an explanation on the job application form as to why the information was required. In terms of determining employee entitlements and differentiating between employees with the same name, Woolworths could not reasonably require the date of birth until an applicant has been offered a position;
- The Commonwealth’s gender equality reporting framework did not impose a positive obligation on Woolworths to gather information regarding gender. Rather, it imposed an obligation on Woolworths to report such information it had gathered regarding gender. Accordingly, to the extent that an application form disclosed information regarding gender (for example, because an applicant’s name was clearly female or male), Woolworths would be required to report such information. However, the gender equality reporting framework did not provide a basis for Woolworths to make gender a mandatory field in job application forms;
- The Migration Act renders it an offence for an employer to allow or continue to allow an unlawful non-citizen to work. It is not an offence for an employer to accept a job application from, or interview, an unlawful non-citizen. Accordingly, while it would be appropriate for Woolworths to require evidence of a person’s entitlement to work in Australia prior to offering a position, the Migration Act did not provide a basis for Woolworths to require such evidence at the job application stage.
In circumstances where Woolworths had been unable to make out any of the defences available under s 124 of the ADA, QCAT held that Woolworths had unlawfully required job applicants to supply information on which unlawful discrimination might be based.
By the time the matter came before QCAT, Woolworths had already changed its online application form such that there was no ongoing breach of the ADA.
The Tribunal was satisfied that Mr Willmott had been embarrassed and humiliated by the discriminatory questions, and as a result he had lost the chance to apply for employment with Woolworths. Woolworths was ordered to pay compensation of $5,000.
Lessons for employers
While the case was decided based on Queensland’s anti-discrimination legislation, the principles apply equally to the anti-discrimination legislation in force throughout Australia.
Accordingly it is important for all recruiting employers to carefully review recruiting material when released to the public (in whatever format) for compliance with the variety of overlapping and regularly changing requirements of state and commonwealth anti-discrimination and privacy legislation.
In particular, employers must carefully review expressions of interest / initial job application forms in order to ensure that any information which could be used for discriminatory purposes (including but not limited to gender, parental status, age, race, impairment, religious beliefs, gender identity, family responsibilities) is required at that stage of the process. In most circumstances, it will be difficult to establish that anything other than a person’s name, contact details and relevant qualifications and experience are required at the initial job application stage.
Once a person is being considered for a position, it is appropriate to ask for further information so long as the information is genuinely required for one or more of the businesses functions or activities. To the extent that a business requires potential employees to provide information which is not genuinely required, the business also risks breaching the Privacy Act 1988 (Cth).
This is to be contrasted with an employer request for an applicant to submit a resume, as the volunteering of certain information involves different considerations and will not be discriminatory per se.
