News
Employment discrimination: short young women need not apply
Ants are really remarkable creatures.
To the untrained eye, even a close examination of these creatures fails to disclose any noticeable differences from one ant to the next. However, a conclusion that all ants are identical is far from the truth.
Edward O Wilson is perhaps the most famous – and probably most controversial – ant entomologist of all time. Having dedicated a long and illustrious career to the study of ants, Wilson is able to tell us that – far from being identical – ant colonies represent complex societies, where labour tasks and functions are divided according to inherent, and different, characteristics between individual members. For example, certain larger members of a colony play an exclusive role as warriors and defenders – other more meek ants are, in contrast, charged with performing functions in what amounts to a nursery.
Wilson’s lifetime of study led him, in 1975, to write a remarkably controversial work entitled “Sociobiology: The New Synthesis”. In this work, Wilson theorised that within ant colonies selection for work functions is made on the basis of inherent capability. Put another way, Wilson argued that, in nature, selection for work is made on the basis of inherent ability – and that some workers are born to be better performers than others.
The controversial aspect of this theory was Wilson’s attempt to extend its fundamental premiss to all animals – including humans. The proposition that humans had their destiny predetermined (or at least constrained) by biological characteristics was something which led to harsh criticism from a number of different groups – particularly including feminists and groups opposed to racial discrimination.
The debate about the validity of sociobiology as a theory goes on today. It is, however, curious that it has some aspect of overlap with New Zealand’s employment law.
One of the most important business challenges for an employer is the selection of good employees. In making a decision about whether a person is “good” for a job, however, the employer is potentially constrained by human rights legislation.
Put simply, an employer is able to select a person which it considers to be the best for a particular job – but it cannot base its selection decision on a number of prohibited grounds – including such things as gender, marital status, religious belief, race, age and sexual orientation.
This constraint is not, however, absolute. The legislation allows for a number of exceptions. For example, an employer whose work involves matters of national security may discriminate between job applicants on the basis of such things as political opinion and national origin. An employer may discriminate on the basis of gender or age where the nature of a job involves the need for privacy or modesty (for example, an attendant in a changing room).
As a general rule, this particular area is one which is fraught with difficulty. Even though most of us would readily accept the validity of legislation which prevents unfair discrimination, we equally expect to see certain features in people required to perform certain jobs – put another way, we do not regard ourselves as ants all of whom are identical for material purposes.
For example, we expect models for women’s clothing to be women – and would generally not be surprised to attend a fashion show where all such women were tall and thin. Rightly or wrongly, such is our inherent expectation about a person who performs such a role – and as a result, we might not regard selection decisions on this basis as unusual.
But is such selection illegal? And where is the line to be drawn?
A recent decision of the Victorian Civil and Administrative Tribunal provides us with a useful illustration. The employer in Gateway Support Services Inc [2003] VCAT 2025 maintained a facility which cared for people with intellectual disabilities, and sought to advertise for employees. The workplace did, however, offer some particular burdens. It housed two clients who were known to exhibit what was described as “challenging sexual behaviours” towards younger, shorter, women. As a result, the employer wanted to advertise for male applicants, or for females who displayed characteristics which would not aggravate these clients.
Under the relevant Australian law, the employer was required to apply to the Tribunal for an exemption under human rights legislation to allow it to make a job selection on this basis. The Tribunal allowed the exemption – deciding that, although the employer was admittedly acting in a discriminatory fashion, such discrimination was reasonably justified given the particular requirements of the job.
It is likely that a similar conclusion would be drawn under New Zealand law. Put simply, if an employer is able to show that an otherwise unacceptable discrimination was justified on the basis of genuine occupational need, it would be unlikely to be held to have acted in breach of human rights legislation.
Where this issue becomes problematic, however, is where an employer maintains that it has a genuine occupational need which is not necessarily universally accepted – for example, if an employer maintained that it wished to employ “attractive females” for the purpose of portraying a “sexy” public image. American case law is filled with examples of the challenges made to such attempted justifications.
I suppose that if an alien was to observe us from a great distance, it might conclude - like us with ants – that all humans are materially identical. That is, to a large extent, the way that our human rights legislation would like to have employers behave when making employment decisions.
The fact remains, however, that we are not all identical – and the distinctions between us are significant matters for employers in making decisions about job applicants. Whether those distinctions fall foul of the law may raise difficult legal questions.
First published in The Independent, 14 April 2004
