Protecting yourself from claims of gender discrimination

By 29 June, 2021 No Comments

A former male BHP Billiton Executive based in the US is seeking to use the US Civil Rights Act to claim he was discriminated against by the American arm of BHP on the basis of his sex due to the use of company-wide gender based quotas.

What happened?

In 2015, BHP set out to increase its female workforce by introducing global mandatory hiring quotas to reach a target of a 50% female workforce by 2025.

Following a restructure, the Executive’s role was abolished and he applied for four job openings, with each position being filled by female candidates. The executive made a formal complaint alleging that the women given the roles were less qualified than him and only employed to meet the quota. BHP investigated his complaint and found that the female candidates were offered the roles for “legitimate, non-discriminatory reasons”.

The Executive is now seeking to pursue his complaint that he was discriminated against due to his sex as an alleged breach of the US Civil Rights Act.

Are gender quotas legal in Australia?

It is unlawful to discriminate against someone in the context of employment on the basis of sex in Australia under the Sex Discrimination Act 1984 (WA). However, gender-based targets and

recruitment quotas are permitted in Australia under the Sex Discrimination Act 1984 (WA), which allows employers to ‘take special measures for the purpose of achieving substantive equality between men and women’.

Whilst gender equity targets and recruitment quotas are lawful, it is important for employers to take a reasonable and fair approach when implementing them. For example, a recent probe into the implementation of a recruitment process in the Queensland police found that the organisation had lowered entry standards for women, lifted the bar for men and raised ‘serious concerns over the standard of leadership and management’.

What are your obligations as an employer around discrimination?

Employers should be aware they have a positive obligation to reasonably prevent and address incidents of discrimination in their workplaces under occupational health and safety laws.

There is no one size fits all approach to address discrimination and recruitment quotas will not work for every organisation. However, your business does need to consider what measures it should use for both the recruitment and retention of employees and should consider how discrimination may manifest substantively in the way policies work in practice.

Some simple steps you can take include:

1. Review your pay arrangements, identify significant differences between people in similar positions and create standardised pay bands;

2. Have a diverse interviewing panel for candidates;

3. Provide training and information regarding discrimination and diversity to your staff;

4. Address complaints promptly and confidentiality and review whether the business can make any improvements to its systems after resolving the complaint; and

5. Offer flexible working arrangements and don’t reserve promotion opportunities to full-time workers.

If you require assistance in relation to any of the information provided above, Pragma’s specialist employment lawyers can provide advice to you and your business to minimise your future risk.

Contact us today by clicking here or call us on (08) 6188 3340.