The Act recognises there are groups of people who miss out on opportunities because of attributes such as sex, race, an impairment, or age and the most frequently mentioned opportunity is employment.
This is not surprising because without an income, a person’s access to food, shelter and education is also limited.
Having limited access to these basic human rights is terrible for the individual, but when groups of people cannot access employment, it is also detrimental to society.
However, provisions under the Act allow employers to address these issues and select job candidates because of their sex, race, sexual orientation, an impairment, or age.
Under the Act, this is called ‘measures intended to achieve equality’.
Some of the provisions such as s 31 of the Act allows employers to select only female employees to address a lack of representation of women in that organisation. Ideally this should be at various levels within an organisation not confined to lower levels.
There is also s27, which allows an employer to specify that a position is only open to a person of a particular sex (male or female) because the role requires it. This is referred to as a genuine occupational qualification.
There are also provisions that allow for lawful race discrimination in employment.
Section 51 of the Act allows an employer to employ a person of a particular racial group as a measure to achieve equality and s 50 (d) can be used by employers who have identified people of a particular race are best suited to deliver the services of the role.
For the ground of sexual orientation s 35ZD can be used as a measure to achieve equality, as can s 66R for impairment, and s 66ZP for age.
Although these provisions may not stop a person from lodging a complaint against a prospective employer, if an employer can provide evidence to support their use of the provision the complaint is unlikely to be successful.
Of course, the employer would have to demonstrate there is a genuine need to apply the exceptions. Relying on stereotypes such as women are more presentable, or people of a specific race are harder workers, are irrelevant considerations when it comes to deciding if there is a genuine need to fill a position with person of a specific gender or race.
However, if there is a genuine imbalance of representation in a workplace, the Commission encourages employers to use the provisions under the Act to proactively address discrimination in employment because it makes sense!
More people meaningfully engaged in employment means more people meaningfully engaged in society, and greater diversity within an organisation means better service provision for a wider customer base and a more balanced workplace culture.
