Recruiting’s old chestnut

A recent court decision on Virgin Blue age discrimination signals an added burden for employers. By PETER VITALE of VECCI

By Peter Vitale

A recent case against airline Virgin Blue highlights how companies need to be very careful to avoid age discrimination in recruiting staff – and in appointing staff who do the recruitment.

The Anti Discrimination Tribunal Queensland (ADTQ, part of that state’s Anti-Discrimination Commission) found that Virgin Blue discriminated against eight women, aged 36 and over, who applied for jobs as flight attendants. The Supreme Court of Queensland recently rejected Virgin’s appeal.

The Supreme Court supported the ADTQ’s finding that Virgin’s recruitment processes were applied in a way that resulted in the complainants being discriminated against on the grounds of their age.

The decisions arguably take anti-discrimination law close to requiring “positive discrimination” by employers. That is, requiring that employers deliberately hire older workers.

There was no finding that Virgin had directly selected candidates who were younger than 36. Arguments that the recruitment process was effectively a “beauty parade” were also rejected, and Virgin’s recruitment processes were found to be “age-neutral”.

The problem to Virgin was that its recruitment process was implemented by a group of mostly young and inexperienced staff.

Although the ADTQ found that they had received adequate training, the young staff applied Virgin’s system in a discriminatory way because they were more likely to select candidates who were the same age and who had similar life experience. The Supreme Court supported the reliance of the ADTQ on statistics showing that Virgin had a workforce that was very heavily weighted to an age group younger than 36.

It wasn’t suggested that the Virgin staff had any intention or motive to discriminate.

The decision suggests that employers must not only have procedures that do not discriminate against particular candidates, but they must ensure that the staff entrusted with recruitment duties must be screened and trained to ensure that they are not inclined to select candidates more “like” themselves.

The extra time and costs required to engage appropriate processes and human resources staff suited to ensuring that no one group of candidates can be discriminated against are self-evident.

Although this may be something that an organisation the size of Virgin Blue, if not in the present case (at least potentially) could achieve, it may be setting a standard that is just about impossible for SMEs to meet.

Even if the decision against Virgin Blue doesn’t ultimately have consequences for other employers that are quite at this extreme, there are still some important lessons for SMEs:

• Always ensure that any recruitment policies, standard application forms or advertisements do not suggest that particular groups identified in anti-discrimination legislation are likely to be excluded from the position.
• Don’t ask for information that is not relevant to requirements of the position the candidate is seeking.
• Make sure that any staff responsible for recruiting decisions have a clear understanding of anti discrimination laws, and what their own personal biases might be.
• It might be prudent, particularly if your organisation shows a tendency to recruit people who are of similar age, gender and social background, to have a “second pair of eyes” review recruitment decisions before they are confirmed.

Peter Vitale is a solicitor, the General Manager of Workplace Relations Services at VECCI and a principal at CCI Victoria Legal.

See more articles by Peter Vitale here.