Workplace diversity and inclusion (D&I) has become a commercial issue.
It’s now common for invitations to tender for major projects to ask about the gender and racial composition of a contractor’s workforce.
Employers with 100+ employees also must report their workforce composition by gender to a Commonwealth agency, the Workplace Gender Equality Agency. All this information is publicly available on the agency’s database.
Achieving workplace equality is obviously a good thing – but companies need to be careful not to break the law in pursuit of a good cause.
Positive discrimination is still discrimination
The quickest way to achieve diversity is to identify where your company is lacking and hire people accordingly. For example, if you have fewer women than men in certain roles, only hiring women for those roles for a time might be the quickest solution to achieve better diversity. This is often called “positive discrimination”.
But beware – this policy may be well intentioned, and would address gender inequality, but it is unlawful without a prior, formal exemption.
If a company wants to address inequality in a way that disadvantages others on the basis of a protected attribute (such as gender) it must first apply for a formal exemption to the relevant human rights commission (State, Territory or Federal).
Applying and obtaining this formal approval is quite common for companies whose business model involves positive discrimination – for example women-only gyms and retirement villages.
It is now becoming increasingly common for companies who are seeking to promote diversity and inclusion through their recruitment practices. For example, a national labour hire company recently applied for and obtained an exemption to exclusively hire women into construction industry roles in Queensland.
Steps that promote equality without disadvantaging groups usually do not require formal exemption but do have to meet strict requirements under the discrimination acts. These are known as “special measures”.
Examples of special measures in the workplace that don’t involve disadvantaging other groups include implementing better paid parental leave, publishing workplace communications in multiple languages and improving access for persons with disabilities.
Importantly, employers must consider whether an exemption is required prior to implementing strategies to improve diversity.
Asking people about their protected attributes
Discrimination laws protect people with protected attributes. Each State and Territory protects different attributes and there are some interesting ones to look out for – for example irrelevant criminal record in the Northern Territory, status as a legal sex worker in Queensland and physical features in Victoria. But, broadly the protected attributes are race, sex, age, disability and sexual orientation.
In order to promote workplace equality and diversity companies first need to understand the composition of their workforce.
The difficulty is that even asking for information about a person’s protected attributes (for example: what are your religious beliefs? Are you male, female or non-binary? Which country were you born in?) may be unlawful because that information could theoretically be used to discriminate against someone.
In Queensland, Victoria, the Northern Territory and New South Wales, asking someone about their protected attributes is presumed unlawful unless the company can prove the information was reasonably required for a purpose that does not involve discrimination.
If the company is requesting the information to implement positive discrimination, that request will be unlawful unless it has applied for and obtained an exemption as outlined above.
If you plan to ask your employees about their protected attributes, it is best to first nail down why you are asking that question and whether the request is lawful in your State/Territory.
What about the Privacy Act?
Employers who collect information about their employees’ protected attributes have to comply with the Privacy Act, unless the information is completely anonymous.
Private sector employers usually don’t have to worry about the Privacy Act because that legislation doesn’t apply to information relating to the employment of the employee – for example their contact details, taxation and superannuation details and health issues that affect their work. This is known as the “employee records exemption”.
Information about an employee’s protected attributes is unlikely to fall within the employee records exemption because it is unlikely to have a sufficient connection to their employment (unless a clear connection can be identified – such as a client requirement for a tender).
This will trigger the application of the Privacy Act with its onerous obligations relating to the collection, use and storage of the information.
The best way to avoid the application of the Privacy Act is to ensure the information you collect is completely anonymous.
D&I initiatives may be well intentioned, but they also have to be lawful. Ironically, the biggest risk may be a discrimination claim.
Key considerations are:
- Will the D&I initiative you intend to implement result in positive discrimination? If so, seek formal approval from the relevant human rights commission first.
- Before asking your workforce about their protected attributes (gender, race, religion etc.) make sure you can prove the information is reasonably required for a non-discriminatory purpose (for example, to tender for work or promote equality in ways that don’t involve positive discrimination).
- If possible, collect information about employees’ protected attributes anonymously, to avoid the application of the Privacy Act.