Merit-based hiring remains a struggle for some employers

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Two separate, but related, recent events show the level of ignorance displayed by people who should know much, much better.

Last month news.com.au ran published an article featuring the response to a Reddit post that included a screenshot of a “pre-interview questionnaire” the user had recently been sent by a firm after applying for a position.

The twenty (!) questions asked in the screening questionnaire were mostly standard questions covering work rights, driver’s licence, notice period, and such like.

The final three questions were (listed exactly as per the questionnaire);

Marital status?
Do you need to discuss your career move with your partner/family member/other before making a final decision?
Number of children + ages?

Under the Fair Work Act, an employer is barred from “taking adverse action against an employee or a prospective employee for discriminatory reasons”.

It is unlawful under the Act to use information gathered during an interview to then discriminate against a job seeker, as protection from discrimination extends to applicants and not just current employees.

It seems extraordinary that the employer in question (not named in the Reddit post) could post such questions decades after such questions were (legally) deemed irrelevant to a hiring decision.

Just in case any reader is not completely sure of the problem here, let me spell it out to you – each of those three questions is asking the candidate to provide irrelevant information for the purpose of hiring.

Information sought by any employer from any potential employee must be demonstrably relevant to the skills, competencies, and motivation required to perform the job at a satisfactory level.

The only assumption that can be made from those questions being asked is that there is a ‘right’ (or preferred) answer and a ‘wrong’ answer to each question.

The jobseeker who uploaded the screenshot of the questionnaire to Reddit asked the question that the questions were “extremely illegal, right?”

Technically the answer is “no”. In other words, legal action against the employer cannot be undertaken just because those three questions were posted in a pre-employment questionnaire; a complainant would be required to demonstrate that the questions are being used to gather information that is most likely being used to discriminate against a job seeker based on one or more protected attributes.

Attributes protected under the fair Work Act are; race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, social origin, breastfeeding, gender identity, and intersex status.

In the United States it seems Republican Governor of Texas, Greg Abbott is another person who is either ignorant of how anti-discrimination laws work or he is deliberately misleading people about the use of diversity, equity and inclusion (DEI) initiatives.

Abbott’s chief of staff Gardner Pate told government agency leaders last week that using DEI policies violates federal and state employment laws, and hiring cannot be based on factors “other than merit.”

The Texas Tribune reported;

Andrew Eckhous, an Austin-based lawyer for Kaplan Law Firm, which specializes in employment and civil rights litigation, said the governor’s office is “completely mischaracterizing DEI’s role in employment decisions” in an apparent attempt to block initiatives that improve diversity.

“Anti-discrimination laws protect all Americans by ensuring that employers do not make hiring decisions based on race, religion, or gender, while DEI initiatives work in tandem with those laws to encourage companies to solicit applications from a wide range of applicants, which is legal and beneficial,” Eckhous said in an email.

“The only piece of news in this letter is that Governor Abbott is trying to stop diversity initiatives for the apparent benefit of some unnamed demographic that he refuses to disclose,” he added.

Pate said DEI initiatives illegally discriminate against certain demographic groups — though he did not specify which ones he was talking about.

The critical point made by Eckhous is that whether they are DEI laws or DEI initiatives the purpose is to provide a level playing field; to maximise the opportunity for all employees and jobseekers to be hired, promoted and fired on merit (or lack of it, as the case may be).

It does seem extraordinary that in this day and age of employers (in developed countries at least) crying out about the lack of suitable job seekers that some of these employers persist in creating irrelevant and unnecessary barriers to merit-based hiring.

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