Today’s correspondent
… wanted to ask a question to address a grievance I’ve frequently heard from male graduates looking for employment from a particular jurisdictional ambulance service. This particular service posts photos of their intakes on social media, with some cohorts being predominantly or entirely female. Now I’m aware that these days paramedic graduates are predominantly female, and that these cohorts don’t represent the overall intake of graduates over a given period. But, if hypothetically, a service was hiring females disproportionate to their applicants (or vice versa) – would this constitute discrimination? Even if not due to overt discrimination but the consequence of standardised assessment criteria that might select genders differently.
And does this apply more generally to other protected groups that aren’t as visible such as disability, religion, and sexuality?
To unlawfully discriminate against a person on the grounds of gender is to treat someone less favourably because of their gender (Sex Discrimination Act 1984 (Cth) s 5(1); and see anti-discrimination legislation in each state and territory). No Act requires an employer to employ equal numbers of men and women or employ people across the gender range in the same proportion as the number of applicants’. If they did most businesses would have failed the anti-discrimination tests long ago.
Standardised assessment criteria that might select genders differently can be examples of indirect discrimination (s 5(2)) – and see, for example Curt Varone’s American Fire Law Blog:
- Madison Physical Abilities Test Upheld as Non-Discriminatory Against Women (July 21, 2022) and
- New York Fire Department Sued for Gender Discrimination in Hiring (January 13, 2021).
- Chicago Fire Ordered to Hire 111 Blacks and Pay $30 million (May 14, 2011).
Any sort of test that may discriminate between the genders has to be ‘reasonable’ (s 7B). Discrimination may be permitted if it constitutes ‘special measures for the purpose of achieving substantive equality between: (a) men and women…’ (s 7D). See Lawful discrimination in ACT Fire and Rescue (December 4, 2017).
Conclusion
If a service was hiring females disproportionate to their applicants (or vice versa) – would this constitute discrimination? Answer: No.
Even if not due to overt discrimination but the consequence of standardised assessment criteria that might select genders differently? Answer: possibly.
And does this apply more generally to other protected groups that aren’t as visible such as disability, religion, and sexuality? Answer: Yes.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
QAS “Diversity and Inclusion” Policy signed off by the Commissioner states females are priority employees and are to be identified for promotion… is this not discrimination?
Wendy, it may be in that discrimination means to make a choice. Is it unlawful discrimination? Perhaps not – as the Sex Discrimination Act 1984 (Cth) says that a person does not discriminate against another person by taking special measures ‘for the purpose of achieving substantive equality between: (a) men and women…’ (ss 7D(1) and (2); see also Anti-Discrimination Act 1991 (Qld) s 105). Further having policies to encourage women to apply for jobs, to actively seek their applications and to identify potential candidates for promotion, rather than just rely on them to self-identify as suitable candidates may not be discriminatory if the objective is to increase the field of candidates. It may become discriminatory if a woman is chosen because she is a woman when a male candidate’s application – either for employment or promotion – is equal to hers, but that is when those exemptions listed above could apply to that sort of policy. So is it discrimination? One would need to know more how that policy was implemented. Is it unlawful discrimination – again one would need to know more about the circumstances and the equity issues in the workplace.