Mostly, discrimination is something people want to avoid – because it’s unfair, and can be incredibly harmful.

But what about situations in which discrimination might actually be helpful – either for candidates or for your organisation?

In some circumstances, particularly for NFPs, the law does provide carefully defined exemptions to state- and federal-based anti-discrimination laws.

If you work with vulnerable communities or deliver culturally-specific services, for example, certain requirements – such as physical capability, cultural background or gender – may be essential to performing a job safely and well. In these cases, distinguishing between candidates can be considered a legitimate hiring practice.

But this is a complex area, with different rules in different states and territories, so it can be difficult to work out what exactly the laws and exemptions are, and how they apply to your organisation.

To help you understand when you’re on solid ground (and when you might be entering risky territory) with setting a particular hiring requirement, legal support NFP Justice Connect has created a new fact sheet focused on “Discrimination in recruiting employees” specifically to help NFPs and community organisations across Australia understand discrimination law at a state and federal level.

We spoke with Molly Shanahan, Senior Associate at Snow Legal, specialising in employment and industrial relations law, about this complex area of employment law, and what NFP employers need to be aware of to navigate it.

What is discrimination?

Generally, discrimination is treating, or proposing to treat, someone less favourably because of a personal attribute protected by law.

Protected attributes vary state by state, but generally include: age, race, gender identity, sexual orientation, physical or mental disability, marital status, parental or carer status, pregnancy, and religious or political beliefs. There are also some state-specific protected attributes, such as: irrelevant criminal record, breastfeeding, family violence victim status, language, immigration status and trade union activity.

When it comes to employment, discrimination law generally prohibits treating job applicants unfairly on the basis of these attributes across every stage of the recruitment process – from advertising to final selection. Ultimately, hiring decisions should come down to skills and merit.

But there are some significant exceptions to this!

When may discrimination be lawful?

In specific circumstances, differential treatment in hiring can be justified. For example, if:

• Someone with a disability can’t carry out the requirements of a particular position, even if reasonable adjustments were made (reasonable adjustments being changes or modifications to the workplace or role – such as flexible hours, assistive technology or physical modifications – to enable someone with a disability to perform the job),
• The discrimination is reasonably necessary to protect the health or safety of others (for example, hiring people of a particular age – such as someone over 18 to work in a childcare centre),
• Differential treatment is considered positive discrimination – based on, say, race, disability or age – in order to improve the situation and achieve substantive equality for a particular disadvantaged group (for example, advertising a role specifically for Aboriginal or Torres Strait Islander applicants).

In Australia, the legal framework for when an employer can discriminate between candidates generally falls within these three categories:

1. Inherent requirements of a role

These refer to the essential duties of the job and the capabilities required to carry them out safely and effectively – such as having certain physical capabilities or communication skills. Employers can base hiring decisions on these requirements where they are directly connected to the work.

2. Genuine occupational requirements

This allows for hiring based on a personal attribute (like gender or race) when it is integral to the delivery of the service. In a disability support role, for example, employers may need to differentiate based on gender to maintain client privacy and decency in sensitive areas, such as change rooms or intimate care settings.

This is also the reason churches and other religious organisations are permitted to recruit employees who match “the beliefs, doctrines or principles of the body or school’s religion”, since this is “an inherent (i.e. core, essential or important) requirement of the job”.

3. Special measures

These are the intentional actions taken to help disadvantaged or underrepresented groups achieve “substantive equality”. Special measures allow employers to recruit for “identified positions” like Aboriginal and Torres Strait Islander roles.

When you need to apply for a formal exemption

In some cases, you may need to apply for a formal exemption from anti-discrimination law before introducing a particular hiring requirement.

An exemption is needed if the proposed action does not clearly fit within existing statutory exceptions, such as “special measures” which are designed to promote substantive equality for a disadvantaged group. While most states allow for “special measures” (like targeted hiring for Aboriginal or Torres Strait Islander people) to be conducted without a formal exemption, if you’re based in NSW, you do need to apply for approval for an exemption by filling in the form here.

Even if you don’t need a formal exemption, it can be valuable to still apply for one to gain legal certainty and protection against potential discrimination claims, particularly when the proposed “special measure” is complex or sits in a legal grey area.

Exemptions are assessed case by case, and an application must outline what you propose to do, why it is necessary, and how it supports safe and effective service delivery. If granted, an exemption allows certain provisions of anti-discrimination law to not apply for a defined period.

At the Commonwealth level, applications can be made to the Australian Human Rights Commission – typically for up to five years – under legislation such as the Age Discrimination Act 2004 or Disability Discrimination Act 1992. States and territories have their own legislation as well, with applications generally made to local tribunals or equal opportunity bodies.

Real-world scenarios

It’s helpful to examine how these legal concepts play out in practice. The following scenarios from Justice Connect’s guide demonstrate how particular NFPs may lawfully differentiate between candidates to uphold the integrity and safety of their mission:

Example 1: An Aboriginal theatre company in Victoria would like to advertise the position of its Artistic Director as only available to people with an Indigenous background. The theatre company may be able to argue that it can limit the offering of employment to people with an Indigenous background for reasons of authenticity or credibility in the theatre’s performances.

From a practical perspective, when advertising the position, the theatre company should highlight the aspects of the role that necessitate applicants with Indigenous backgrounds. This is because job ads could be critical to establishing this necessity, if the organisation needs to defend allegations of discrimination by a non-Indigenous applicant. To limit risks associated with anti-discrimination claims, the organisation may also wish to apply for an exemption under the Equal Opportunity Act 2010 (Vic), the applicable anti-discrimination law in Victoria.

Example 2: Women’s Aid in Victoria is a (fictitious) organisation that provides welfare and support services to women experiencing homelessness. Most of the women that Women’s Aid assists have experienced domestic violence. Women’s Aid wants to recruit more welfare officers to its organisation, but it wants to limit those roles to women only.

This may be permissible if the organisation can show either a genuine occupational requirement for these roles to be performed by women, having regard to the nature of the work and the needs of the organisation’s clients, and/or that those services can be provided most effectively and appropriately by women and that recruitment on that basis is necessary for the advancement of the women receiving care. To limit risks associated with anti-discrimination claims, the organisation may also want to apply for an exemption under the Equal Opportunity Act 2010 (Vic).

Best practice for NFPs

Snow Legal’s Molly Shanahan says that given discrimination is such a sensitive area of law, where it’s easy to drift into grey areas, NFPs need to clearly define any specific requirement or special measure from the outset of a recruitment process and document it with plenty of supporting evidence.

From there, considered action needs to take place at every stage to minimise the risk of discrimination and support fair, consistent decision-making. This includes ensuring:

1. Detailed job descriptions: Shanahan emphasises the importance of clear communication in job ads that outline the specific requirements and their relevance. “Lawful discrimination decisions are easier to defend when a position description sets out why it would be required – the nature of the work, the client group, and the service delivery model,” Shanahan says: “For example, an NFP hiring an Indigenous liaison officer might outline in the ad: ‘you’ll be working closely with Indigenous elders of this particular community, supporting them through these particular issues’.”

2. Accurate interview questions: Standardising questions for all candidates and ensuring they relate directly to the role requirements is essential for a fair hiring process. Avoid asking questions that may be presumed to be relevant only to certain individuals or that intrude into irrelevant details about a candidate’s personal life or attributes.

3. Neutral hiring notes: It’s also important to document the reasons for choosing the successful candidate and keep them focused on skills, experience and role-related criteria. Shanahan cautions against commentary about a candidate’s personal characteristics in interview notes or panel communications, particularly where those attributes are not directly relevant to the inherent requirements of the role.

4. Merit-based decision-making: “Returning to merit-based decision-making is essential,” says Shanahan. “Focusing on what a candidate needs to safely and effectively perform the role – knowledge, skills and experience – can help guide fair decisions. Whether something is lawful is tightly regulated, so you should never assume you can freely discriminate. The safest approach is to consistently assess candidates against the inherent requirements of the role rather than personal characteristics.”

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When navigating the complexities of Australian employment law, the most effective safeguard is a recruitment process that prioritises transparency and objective merit. By clearly defining inherent requirements and maintaining rigorous documentation, NFPs can confidently build diverse teams while minimising the risk of costly discrimination claims.

As Justice Connect emphasises, these legal frameworks aren’t just about compliance – they’re about ensuring that the organisations serving communities are as fair, inclusive and effective as they can be.

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