Are employers allowed to discriminate against potential employees?

by The FindLaw Team

It may seem counterintuitive that laws exist which exempt certain discriminatory behaviour in regards to employment, but legislation does permit certain defences to be  available for employers who engage in the type of behaviour that under any other situation, may be deemed to be directly or indirectly discriminatory. Although we should add that statutory provisions don’t make it ‘lawful’ for an employer to engage in discriminatory behaviour per se, and that if a respondent argues an exception as a defence, there will then be a number of associated elements that still needs to be shown in order for an employer to raise an exception defence.

Firstly, let’s cut to the chase: Any employer who puts forward a defence that their actions are not discriminatory, must prove that the conduct was not unlawful, and the onus is usually on the respondent in such a situation to demonstrate the validity of their argument.

What are the categories of exceptions?

Differences exist between the jurisdictions in regards to the exceptions, but broadly speaking, there are a few general types of exemptions:

indirect discrimination exception: a defence of indirect discrimination usually involves all of the circumstances of the matter to be weighed up in regards to the effect the behaviour has on an impacted group;

‘genuine occupational qualification’: is also referred to as a general exception that is made available under certain Acts, and we can use s 30 of the Sex Discrimination Act 1984 (Cth) provisions as our example, starting with s 30(1) of the Act, which allows gender to be taken into account in the hiring of employees, commission agents or contract workers for a “position in relation to which it is a genuine occupational qualification” to be a person of a “particular sex” (s 30(2)). However we should note that Acts such as the Racial Discrimination Act 1975 (Cth) does not make such a general exception;

‘inherent requirement’: similar to the “genuine occupational qualification” exception, the “inherent requirement” defence is available at a Commonwealth level in respect to disability and age discrimination, as outlined in s 21A of the Disability Discrimination Act 1992 (Cth) and s 18(4) of the Age Discrimination Act 2004 (Cth). Under the aforementioned provisions, an employer may be permitted to exclude a person from a role if the applicant cannot perform the “inherent requirements” of the position. However, we should add that s 21A and s 21B of the Disability Discrimination Act exception are not absolute, and the provisions require an assessment to be made to determine if the person can perform the duties associated with the role, providing that “reasonable adjustments” are made, and which an employer is also obliged to provide.

Although the Fair Work Act 2009 (Cth) allows an exemption to be made in regards to an industrial instrument and under the Sex Discrimination Act for example, a note is included under the s 40(1)(g) exceptions stating that the defence may not be applicable to provisions in awards and agreements of no legal effect.

‘Positive’ discrimination

There are also exceptions that are different in nature in that “special measures” have been included allowing employers to identify potentially disadvantaged groups, and to provide such a group with preferential treatment – with such a provision included in s 8 of the Racial Discrimination Act and s 7D of the Sex Discrimination Act.

Using s 7D of the Sex Discrimination Act as our example, an employer may take special measures to achieve substantive equality between:

  • men and women; or
  • a person who is of different marital status; or
  • women who are pregnant or a person who is not pregnant; or
  • women who are potentially pregnant or a person who is potentially not pregnant; or
  • women who are breastfeeding or a person who is not breastfeeding; or
  • a person with family responsibilities or a person who does not have any family responsibilities.

Employment issues can involve a number of complex legal matters to be dealt with, and if you have any problem involving employment law, please seek the help of a lawyer who will be able to assist.


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