- Genuine occupational requirement
- Pre-employment medicals
- Unnecessary questions
Genuine occupational requirement
This means the actual skill, ability, capacity or characteristic that an applicant MUST possess in order to fulfil the requirements of the position. Sometimes employers look for 'desirable' characteristics rather than determining what is actually required in the role.
A genuine occupational requirement may be that the individual is from an Aboriginal or Torres Strait Islander (A and TSI) background or has significant ties to Aboriginal or Torres Strait Islander communities. In these cases it may be appropriate for employers to advertise for an 'identified position'.
Discriminatory advertising can be unlawful and both the publisher and the potential employer can be liable.
Section 127 of the Anti-Discrimination Act 1991 prohibits the publication or display of advertisements that may be discriminatory. One exception to this is advertising for junior staff. The Act permits advertising for, and paying junior staff (under 21 years of age) in accordance with the worker's age.
Tips for non-discriminatory advertising
- Indicate that all suitable applicants may apply.
- Ensure the job advertisement reflects the genuine occupational requirements of the role.
- Avoid references to sex, age, religion, relationship status, or other characteristics that aren't essential to the job.
- Choose a wide range of mediums for advertising in order to attract a diverse pool of applicants.
While pre-employment tests can help in selecting people for jobs requiring certain abilities, there are some main features which would indicate that the test is non-discriminatory. These include:
- The test should relate specifically to the genuine occupational requirements of the job and be conducted by an experienced practitioner who understands the job requirements.
- Accurately identifying any specific physical capacities needed for the job, ensuring they are reasonable
- Consider reasonable ways of accommodating people with disabilities
- Providing reasonable facilities or services needed by applicants with disabilities and assessing the person's ability to perform the requirements of the job using these facilities
- Assessing current health status and not predicting future deterioration unless you can show it's reasonable to do this.
Pre-employment medical testing should not be used to screen out applicants with past injuries or disabilities, or those with past worker's compensation claims. Current ability to perform the essential parts of the job is the critical factor to be assessed.
Related information - medicals
- Fact sheet on medical information and recruitment
- Webinar: Understanding disclosure of pre-existing conditions
Under the Anti-Discrimination Act 1991 it is unlawful to ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. There are some exceptions to this rule when it can be shown that the information is genuinely required for non-discriminatory purposes or is authorised under other legislation, court order or industrial agreement.
Related information - questions
Exemptions are exceptions to the Act. This means that discriminating in some circumstances is not unlawful. The Queensland Anti-Discrimination Act 1991 outlines a range of general and specific exemptions.
Exemptions aren't automatic, although some are more straightforward than others. In most cases, if someone complains of discrimination, the respondent must raise and argue the exemption. If the argument is successful, the behaviour will be lawful, although it may still be discriminatory. Some exemptions are common sense and simply provide a 'level playing field.'
- Parking spaces are set aside for people with a disability.
- A 15 year old is paid less than a 17 year old doing the same job.
- Fare concessions are given to age pensioners and students on public transport.
- Some jobs are open only to Indigenous people, or to women or men
An exemption can be raised when you respond to a complaint of discrimination. The onus is on you to prove on the balance of probabilities that the exemption applies in the particular circumstances of the complaint.
The Commission won't decide whether an exemption applies except in the clearest of cases. This decision generally lies with the Queensland Civil and Administrative Tribunal.
To apply for an exemption that is not already outlined in the Anti-Discrimination Act 1991 , application should be made to the Queensland Civil and Administrative Tribunal .