The NSW Administrative Decisions Tribunal has upheld an employee’s claims of indirect racial discrimination because the employer’s selection criteria disproportionately excluded members of a certain race.
The employee worked as a Grade 2 pharmacist for a number of years. He applied for a Grade 3 position in March 2011, but was unsuccessful. One of the selection criteria was “demonstrated excellence in at least one clinical specialty practice.” The applicant (and all other Arabic pharmacists at the hospital) could not meet the requirement because he was a rotating, rather than a specialist, pharmacist. Even though this criterion was not the basis cited for rejecting his application, the employee was able to show that he would not have been able to satisfy the requirement for a promotion.
The Tribunal found that 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”. It held that the selection criterion was not reasonable in all the circumstances. As such, the complaint of indirect racial discrimination was made out.
Key points for employers:
- Employers should be aware of the practical consequences of imposing certain selection criteria when filling positions.
- The assessment for indirect racial discrimination is (1) whether the criterion excludes members of a certain race, (2) whether that exclusion is substantially larger than any exclusion of other races, and (3) whether the selection criterion is nonetheless reasonable in all the circumstances.