Introduction

Many employers are turning to AI to help them to find, shortlist and select talent.

Of course, doing so isn’t without legal risk. Blaming AI for lawfully discriminating against job applicants is unlikely to cut it with Courts and Tribunals. “AI made me do it” is no defence to a legal claim.

The vexed issue of AI in recruitment comes into sharper practical focus when shortlisted candidates are interviewed and employers need to ask sensitive questions, which if not correctly framed, can create unnecessary risks.

The first risk is obvious. The employer asks a question that suggests its decision not to employ someone is due to a protected attribute. Think a person’s age or their family responsibilities.

The second risk is less obvious. Here an understandably cautious employer doesn’t ask questions relevant to whether the candidate can perform the inherent requirements of the job vacancy. An example might be whether a candidate has the psychological capacity to make objective and sound decisions when performing an emotionally stressful role. Here the employer fails to extract information relevant to its decision whether to select a particular candidate, and in doing so, makes the wrong recruitment decision.

Both risks are problematic.

AI hasn’t changed anti-discrimination laws. However, its prevalence in recruitment, including conducting initial interviews and preparing interview questions, are giving some employers a false sense of security.

In the age of increasing AI use, this article discusses the federal and Victorian anti-discrimination laws which cause the most legal risk during job interviews.

Be careful about what you ask

In Victoria, there is no specific employment legislation which prohibits employers from asking certain questions during job interviews. It is not unlawful for employers to ask questions regarding aspects of an applicant’s personal life, for example their gender or disability.

However, it is unlawful under various anti-discrimination laws for employers to pass over a job applicant due to protected attributes. The Fair Work Act 2009 (Cth)’s General Protections and Victorian and federal anti-discrimination laws prohibit employers from refusing to hire (or hiring on less favourable terms) people because of protected attributes. A PDF table setting out these protected attributes is available here. This is where questions regarding certain aspects of an applicant’s personal life become problematic.

Unsuccessful job applicants may allege that a prospective employer who asked them questions regarding certain aspects of their private life chose not to employ them because, or partly because, of their answer. For example, an unsuccessful applicant asked to disclose to an employer whether they had a disability irrelevant to the job may allege the employer chose to not employ them because of their disability.

For this reason, if a question (especially relating to protected attributes) is irrelevant, it should not be asked. They can give unsuccessful applicants an arguable case that they have been discriminated against as the questions certainly suggest that particular attributes were relevant to an employer’s decision whether to employ them.

Because

The ‘because’ requirement in anti-discrimination laws is important. Even if a problematic question is asked in a job interview (and a protected attribute becomes apparent), it still must be shown that the protected attribute was the reason, or a substantially contributing factor, for the applicant not being offered employment.

If the decision to refuse to employ the applicant was made for reasons unrelated to the protected attribute then it is likely there is no unlawful discrimination.

An example of this is University of Ballarat v Bridges [1995] 2 VR 418. In that case, a job applicant was asked a series of questions about her children, and what she would do if one fell ill whilst she was at work. The applicant was not offered the job. She alleged she had been discriminated against because of her parental status. However, the Court accepted evidence that she had not been offered the job for her poor performance in the interview, not her parental status. As such, no discrimination had taken place.

It should be noted that where an applicant alleges discrimination in contravention of the Fair Work Act’s General Protections, unless the employer can prove otherwise, it will be presumed that they did not employ the applicant for the alleged discriminatory reason. This is commonly known as the reverse onus of proof.

Inherent or genuine and reasonable requirements

Employers have a defence to claims under the Fair Work Act’s General Protections, federal age and disability discrimination legislation if the person discriminated against could not perform the inherent requirements of the position.

Victorian anti-discrimination law has a slightly different exception with respect to disability discrimination. It is a defence to a claim brought under Victorian law if the applicant could not perform the genuine and reasonable requirements of the position even if reasonable adjustments to the position were made, or any adjustments which could be made would be unreasonable.

A classic example of a discriminatory situation which could fall within the above exceptions is that of a job in a nightclub where patrons must be over the age of 18 to enter. It would be sufficient to ask whether an applicant holds or is eligible to hold a Responsible Service of Alcohol Certificate and refuse employment on that basis. This is because the applicant cannot perform the inherent requirements of the position as only people aged over 18 years are eligible to hold the certificate.

Federal and Victorian sex discrimination legislation also contain exceptions for employers who limit offering employment to persons of a particular gender, provided it is a genuine occupational requirement of the employment that employees be of a particular gender. An example of where this exemption would apply is where the job involves fitting clothing for persons of a particular gender.

Employers who wish to make use of these exceptions should tailor their job interview questions so that the questions directly relate to an applicant’s ability to perform essential aspects of the job.

An example of such a question could be describing an inherent requirement of the job to an applicant and asking them if they thought they would be able to perform that requirement, and if not, what adjustments, if any, could be made to allow them to perform that requirement.

An example of the application of the inherent requirements-type exemptions is Kassir v State of Victoria [2012] VCAT 1977. In that case, Mr Kassir applied to become a police officer. In the application process he disclosed his mental illnesses including post-traumatic stress disorder, depression and anxiety. Victoria Police rejected Mr Kassir’s application, saying these made him incapable of performing the genuine and reasonable requirements of a police officer and no reasonable adjustments could change that.

Mr Kassir brought a disability discrimination claim under the Equal Opportunity Act 2010 (Vic). The Victorian Civil and Administrative Tribunal accepted that resilience to stress, the ability to manage pressure, and perseverance were genuine and reasonable requirements of being a police officer. The Tribunal held Mr Kassir’s condition left him incapable of performing these genuine and reasonable requirements. His past inability to cope with educational pressures was influential in the Tribunal arriving at this view. Mr Kassir could not suggest any adjustments which could be made to allow him to perform those requirements. As Mr Kassir could not perform the genuine and reasonable requirements of the job, Victoria Police was not liable for disability discrimination.

Kassir shows the importance of the inherent requirements exception. Applicants who are rejected for an inability to perform the inherent requirements of the job, and not for their disability or other protected attributes, will be unlikely to be successful in a discrimination claim.

Consider what the inherent or genuine and reasonable requirements actually are

It is important to determine what the inherent or genuine and reasonable requirements of a position actually are before interviewing job applicants. This allows employers to craft questions relating to whether an applicant can perform the inherent requirements and, if not, what (if any) adjustments could be made so they could perform those requirements.

Determining the inherent or genuine and reasonable requirements of the position is easier said than done. Just because a particular employment contract stipulates something as an inherent requirement does not make it so.

The Courts and Tribunals often take a common-sense approach in determining inherent requirements. The inherent requirements of a position are the essential and defining characteristics of the position. A requirement will be inherent if the position would not be essentially the same without it.

For example, typing may not be an inherent requirement for a position where an employee must prepare documents on a computer. Rather, the inherent requirement is preparing documents on a computer. This can be performed by typing but could also be performed by utilisation of voice-to-text software.

In Butterworth v Independence Australia Services [2015] VCAT 2056, the capacity to spend 7.6 hours on the phone answering customer enquiries was held to not be a genuine and reasonable requirement of a Customer Service Officer (CSO) position. This was because the CSO position helped customers in several ways and did not just involve being on the phone all day. The position was much broader than just being on the phone. As there were many other CSOs, there was no need for a requirement that every CSO to be able to stay on the phone 7.6 hours a day.

Conclusion

At its simplest, successfully defending an anti-discrimination claim usually requires a decision maker to explain why they didn’t hire someone, and in some instances, why a particular interview question was asked. A decision maker who is unable to provide an explanation other than “AI made me do it” is unlikely to find favour with a Judge or Tribunal member.

Adam Colquhoun (Principal) and Grace Foo (Lawyer)

This article is general information only. It is not legal advice. If you need legal advice, please contact us.