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Employee Discrimination Case Study

Case studies – conciliated complaints of discrimination in employment

Following is a selection of case studies of conciliated complaints about discrimination in employment and occupation. You can also read AHRC Act reports on discrimination in employment and occupation provided to the Attorney General.

Discrimination on the ground of criminal record

Rowena applied for a client service position with a Commonwealth department but was told that her application was unsuccessful because she had a criminal record. She claimed she had only been convicted for traffic offences and the court had taken relevant mitigating circumstances into account at that time. Since then, she said, she had a long history of responsible and high level employment, including working as a manager, being promoted and receiving letters of commendation.

The department stated that Rowena’s criminal record included an offence of driving while disqualified and said that the nature and repetition of her offences demonstrated a lack of responsibility and respect for the legal system. The department claimed this made her unable to fulfil the inherent requirements of the position, which required honesty and integrity, ethical behaviour and compliance with lawful and reasonable directions.

The parties agreed to participate in a conciliation process. As a result, the department agreed to offer Rowena the position she had applied for.

Complaint of discrimination on the ground of trade union activity

Doug had been employed as a pattern maker with an industrial company for 13 years before being made redundant about seven years ago. He claimed that while he was employed with the company he had been an active trade union member and union delegate.

Over the past few years Doug had made three separate applications for employment with the company but was not offered a position. He alleged that he was refused employment because of his trade union activity and claimed that he was told he would not be offered employment because he “had a history” and had cost the company a lot of money.

The company denied the comments and said that, in relation to the three positions Doug had applied for, either a more suitable applicant had been appointed or the position had been deemed unnecessary and no-one appointed.

The complaint was resolved through conciliation with the company undertaking not to make disparaging remarks about Doug and providing him with a statement of regret. The company also confirmed that Doug was able to apply for future positions with the company.

Discrimination on the ground of sexual preference

Anna is employed by a Commonwealth department in a client service position. She claimed that the department has a policy that blocks e-mails containing particular words identified as ‘profanities’. Anna said that the word ‘lesbian’ is on this list and that e-mails sent to her containing this word have been blocked. She complained that, as a lesbian, she was offended by the inclusion of this word on the list.

The department said that the word ‘lesbian’ was on the list of blocked words because employees were receiving inappropriate spam e-mails which included this word.

The complaint was resolved through conciliation with the department agreeing to remove the word ‘lesbian’ from the list of blocked items and provide Anna with a letter of regret.

Complaint of religious discrimination

Julie is a Seventh Day Adventist and her religion requires that work-related activities are not conducted on Saturdays. She claimed that to complete her registration as a medical practitioner she was required to undertake a clinical examination on a Saturday. Anna said the registration body would not allow her to change the day of her exam.

In response the registration body stated that it did not have clinical facilities of its own and had to rely on the facilities in teaching hospitals in capital cities. The registration body claimed that clinical facilities in hospitals in the city where Julie lives were not available on weekdays.

The complaint was resolved through conciliation with Julie agreeing to undertake the examination on a weekday in a clinical hospital in another city.

Complaint of discrimination on the ground of criminal record

Terry applied for a position as a security liaison manager with a bank and was offered the job. He claimed that the bank then withdrew the offer of employment because he had a criminal record relating to deceptive conduct.

Terry said that his criminal record was more than 10 years old and information about his record was obtained from another bank employee and not as the result of the standard criminal record check.

The bank confirmed that an offer of employment had been made to Terry and then withdrawn after they received information about his criminal record. The bank claimed that an inherent requirement of the position was to liaise with police services and that Terry’s criminal record made him unable to fulfil this requirement.

The complaint was resolved through conciliation with the bank agreeing to provide Terry with an apology and $8,759 compensation for lost wages.

The following case studies demonstrate how the federal Equal Employment Opportunity Commission (EEOC) determines if a job ad is discriminatory against individuals who are at least 40.

Case Study 1

Steve, a 67-year-old man, saw an ad in the newspaper for a cashier at Groceries and More. Their advertisement specified that:

"Applicant must be young and energetic and possess excellent customer relations skills. Applicants who are selected would be required to stand for long periods of time and to lift 25-35 pounds."

Steve contacted the EEOC to institute a charge against Groceries and More.

In this case, the EEOC would find a violation. By use of the word "young," the ad specifically indicates a preference, limitation, specification, or discrimination based on age. Such an ad would almost certainly deter many qualified older persons from applying.

Note that if the same ad appeared with only the word "young" deleted, it would probably be acceptable. Persons of all ages can be energetic and possess excellent customer relations skills. Further, the requirements to stand for long periods and to lift 25-35 pounds are not age-related criteria and, in any event, appear to be legitimate requirements for the job in question.

Case Study 2

Curtis, a 57-year-old graphic artist, claims that Sell-It Inc., an advertising firm, has discriminated against him based on age by publishing an advertisement that he feels clearly deters older persons from applying. Sell-It's ad stated:

"Young-thinking, 'new wave' progressive advertising firm has openings for entry-level position for graphic artist with no more than four years' experience. We specialize in music videos and broadcast productions for a youthful audience. Our main focus is in the area of animation. Our clients include famous pop and rap stars. If you have fresh, innovative ideas and can relate to our audience, send your resume."

While the ad does not contain explicit age limitations, read in its entirety, it does appear that persons in the protected age group would be discouraged from applying for the position. Sell-It contends that it does not discriminate against older persons and would hire a 70-year-old applicant if he or she is qualified and willing to work for an entry-level salary.

However, on further investigation it was found that Sell-It has no employees over 25 years of age. It was also revealed that Sell-It recently turned down two fully qualified graphic artists, ages 54 and 61, who were willing to work at an entry-level salary, even though both possessed more than four years of experience.

In this context, the EEOC would probably take the position that the ad is designed to deter older persons from applying. The EEOC would seek to have Sell-It change the ad to read:

"...young-thinking persons of any age with at least four years' experience and willing to work at an entry-level salary."

Case Study 3

Matty, a 45-year-old woman who is actively seeking part-time employment, contends that she was deterred from applying for a position because of the employer's ad. Clean Clothes, a local laundromat, advertised in the newspaper as follows:

"Opening for a person seeking to supplement pension. Part-time position available for Laundromat Attendant from 8:00 a.m.-1:00 p.m., Saturday-Wednesday. Responsibilities include dispensing products sold on premises, maintaining washer, dryer, and vending machines. Retired persons preferred."

This ad limits the applicant pool by indicating a preference based on age. Persons rarely receive pensions or attain retirement status before 55 and frequently not until age 65. Thus, the ad deters younger persons within the protected age group (i.e., persons over 40 but less than 65) from applying. Therefore, it is a violation.

Case Study 4

In response to a labor shortage that exists throughout the southeast region of the country, The Do-It-Yourself Shop, a large home-improvement chain, publishes the following advertisement:

"Wanted: Individuals of all ages. Day and evening hours available. Full-time and part-time positions. All inquiries welcomed. Excellent secondary source of income for retirees."

While the ad mentions "retirees," it is not an illegal age-based discriminatory advertising practice in this instance. Individuals of all ages are welcomed for the employment opportunity. The reference to retirees in the ad does not indicate a preference for this subgrouping of the protected age group. Rather, it notifies them of an opportunity and invites them to participate. The language in this ad differs from the language used in Case Study 3, which suggests that only retired, pension-eligible persons are considered for employment.

Case Study 5

Cindy, a 47-year-old fashion and print model, contends that she has been discriminated against based on age. Beauties, a modeling agency, advertised in the fashion section of the newspaper as follows:

"Experienced models between 21-28 for upcoming fall collection of junior fashions. Applicants must bring a portfolio and references to our Beverly Hills office. Only those persons in the specified age category need apply."

Cindy auditioned and was rejected when the company found out her age. During the investigation, Beauties raised the bona fide occupational qualification defense and stated that the junior collection requires applicants who have a youthful appearance. Beauties further alleges that, traditionally, the junior fashions are targeted to younger women, generally between 18-25.

However, while Cindy is 47, she appears to be 27. In fact, Beauties was in the process of completing the paperwork necessary to hire Cindy when it noticed the date of birth on her driver's license. Beauties can't prove that persons 40 or older have a disqualifying trait that can be determined unless you check the age of the applicant. Therefore, Beauties hasn't proven that age is a bona fide occupational qualification, and its discriminatory ad must be changed.

If an advertisement clearly discriminates on the basis of age, the EEOC acknowledges that the employer can claim that age is a bona fide occupational qualification. In order to establish that age is a bona fide occupational qualification for a particular job, however, the employer must show that all or substantially all individuals excluded from the job are in fact disqualified. If a protected individual can, if fact, perform the job, this would defeat the claim that age is a bona fide occupational qualification.

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