We’ve seen a few cases of jarring job application questions being shared around in the TA community where companies have bluntly asked applicants about their cultural background, sexuality and other protected attributes without much context as to why.
I reached out to two experts – one legal and one cultural – on what identity questions we should and shouldn’t ask in a hiring process.
My interviewees:
But first, some background
There are many protected attributes that employers must not discriminate against. In Victoria as an example, The Equal Opportunity Act 2010 (Vic) contains a general prohibition against employers discriminating against job applicants on the basis of a particular attribute including:
Age, Breastfeeding, Employment activity, Gender identity, Disability (mental or physical), Industrial activity, Sexual activity, Marital status, Parental status or carer status, Physical features, Political belief or activities, Profession, trade or occupation, Race, Religion, Sex or sex characteristics, Sexual orientation and Spent conviction.
There are also other pieces of equal opportunity legislation that operate throughout Australia prohibiting such conduct in conjunction with the above Act e.g., Sex Discrimination Act 1984 (Cth).
How are organisations are getting away with asking job seekers to answer questions about protected attributes?
Georgia, Moray & Agnew: It can be acceptable to ask questions pertaining to protected attributes in job applications provided the responses are not used to discriminate against the applicant. Under section 12 of the Equal Opportunity Act, collecting data for the purpose of taking action to ‘promote or realise substantive equality for members of a group with a particular attribute’ may be considered a ‘special measure’. However, we would generally recommend that employers avoid exposing themselves unnecessarily to the risk of an allegation of discrimination, and only ask questions relating to protected attributes where the answer is relevant to the requirements of the role. There are specific exceptions to when discrimination against prospective employees is permitted. This is highly dependent on the industry, nature of the role, and particular circumstances of the prospective employee.
Gemma, Workplace Edit: First of all, when I see talent acquisition specialists start implementing these demographic questions, I start by understanding the trigger. There’s so many talented people in TA who are passionate about DEI so this isn’t usually a random initiative, it’s often in response to DEI goals that fall into the lap of a passionate person who didn’t have much involvement in shaping the goal! I see so many TA folks scrambling to fulfil a directive that’s landed on them and that needs to change.
Let’s face it, you can’t hire your way to lasting DEI success and whilst inclusive recruitment is important, gathering data at this stage is not always necessary.
I understand there can be a desire to ensure that organisations increase diversity on shortlists as a way of achieving broader DEI goals such as gender balance in leadership but, what tends to happen is that these goals lead to clumsy, ad-hoc changes. This is when we see teams implementing additional demographic questions within application forms without considering the broader context.
First of all, ask yourselves what you’ve done to earn the trust of applicants that you’ll only use that information for good? Start by researching how people with marginalized identities are treated when they disclose their identities. Is it usually a win-win situation for them or does it lead to filling in more questions on the form, clunky conversations in interviews and possible discrimination? I don’t want to tell you I’m gay if you’ll take up five minutes of the interview telling me why your sister voted against marriage equality
So while we are aiming for understand who may add to the rich diversity of our organisation, you’re saying it can be a dangerous time to ask someone for such blunt disclosure?
Gemma, Workplace Edit: Do you want to know someone’s identities or do you want to improve the applicant experience so it’s more accessible, inclusive, and equitable? The data is often used as an input, so if the outcome is improving gender balance, start with inclusive, accessible, and equitable practices and ask for demographic insights after someone has joined. By the onboarding stage, you can earn their trust and show them how the information they are sharing as an employee (not as an applicant), is used for good. Building trust earlier in the process may look like a simple edit to ensure all recruitment adverts on social media have closed captions, image descriptions, alt text and hashtag capitalisation.
Georgia, earlier you mentioned some companies may qualify for an exemption, where discrimination against prospective employees is permitted. Can you share some examples?
Georgia, Moray & Agnew: If a protected attribute is relevant to the inherent requirements of the role, it is permissible to ask questions in relation to this attribute. For example, if a job requires intense physical manual labour, a person’s (old) age and physical (dis)ability etc would be relevant to their ability to perform the inherent requirements of the role. This also lends itself to a discussion of whether reasonable adjustments can be made to enable this candidate to sufficiently perform the role. If the adjustments required are not reasonable, or the job applicant would still not be able to perform the inherent requirements of the role even after such adjustments were made, such discrimination is not unlawful. Other examples include:
- in domestic or personal services industries (e.g., carers) if the work is carried out in the employer’s home, or in the case of an employer agency, the employer’s client has specifically requested a person with a particular attribute, it is permissible to ask questions in relation to this attribute;
- if the employment involves care or supervision of children, discrimination is permitted to the extent reasonably necessary to protect the physical and psychological wellbeing of a child;
- if the attribute is a genuine occupational requirement of the role. This mainly relates to age, sex, race and gender. For example:
- in the case of performing arts and entertainment industries, discrimination on the basis of age, sex, race and disability is permitted if it is necessary for reasons of authenticity of credibility. For example, if a role in a musical is of African descent, it may be appropriate to enquire about the job applicant’s racial background; or
- in the case of a community legal service which provides legal assistance exclusively to women suffering from family and domestic violence; it may be necessary to enquire whether the applicant is female, or identifies as female.
- if the employment involves being a ministerial adviser or member of staff of a particular political party, it is acceptable to enquire about the applicant’s political beliefs.
If information is collected purely for data purposes, such as for improving the employer’s representation of traditionally underrepresented groups in the workplace, for example, Aboriginal and Torres Strait Islander persons, this purpose could potentially be acceptable. In this case, questions on an application could be posed as optional: i.e., yes, no, prefer not to say etc.
Assuming the best intent from organisations, rather than asking screening questions on protected attributes, would it not better legally to state: Our Organisation is committed to Diversity, Inclusion and Representation. Please tick which of our programs may apply to you as we may have a distinct hiring experience that we can offer” ?
Georgia, Moray & Agnew: You can frame it this way, which clearly set outs the purpose of the information being collected and how it is being used. This also ensures compliance with applicable privacy principles relevant to the collection of personal information during recruitment. However, the risk still remains that an unsuccessful applicant will point to the information they disclosed about their protected characteristic and allege that their application was unsuccessful because of it. If you are collecting this information just in connection with the services you offer and to tailor your assistance to a customer/client, rather than in connection with applying for a job they may be successful or unsuccessful for, this is less risky because there is no adverse action (i.e. no decision to decline their application). However, if that information will be in their application on which a decision will be made, a safer option is to say something along the lines of ‘if you are require any special assistance in connection with this process, please let us know’. In this way, someone with particular challenges can reach out, but you are not asking people to disclose their protected characteristics. If someone does reach out, and discloses to you their protected characteristic, e.g., disability, then the risk above will still exist.
Gemma, Workplace Edit: If you have specific programs and have special measures in place, I think you can build trust by explaining the context (what you are committed to, why and how this program advances that commitment) and then invite people to nominate themselves into programs that align with that framing. I think we can become distracted with “diversity hiring programs” and forget that in most organisations, 99% of hiring is done through mainstream practices that don’t have programs or special measures and those practices need some attention!
Make sure you have ways to reduce barriers and biases in hiring and ensure those strategies are informed by people with lived experience. It’s often a great project to collaborate with employee led resource groups as you’ll walk through the hiring process together and see barriers and opportunities. If you are asking people for information on their demographics and still asking candidates for their current salary (which is unhelpful for DEI progress – just google the ask gap) or notice your hiring managers knock back candidates whose names they can’t pronounce, you probably have some more important focus areas than data collection.
Here are a few more we worked on with the talent team at Envato:
Pronouns: Instead of collecting data on gender identities, we want to make sure we aren’t making assumptions so we now ask candidates to let us know their pronouns at any stage of the recruitment process and as an option on our application forms.
Reasonable Adjustments: Instead of asking for disability disclosure, we ask candidates if candidates need any adjustments throughout our recruitment process (reasonable adjustments may include: longer time on take home tasks, providing some interview questions in advance, turning on closed captions) and we provide these examples to candidates so they might be more comfortable in letting us know what adjustments they may need.
Cover Image: Shutterstock
