King & Wood Mallesons

Asia-Pacific 100 position: 3

Employer’s position selection criteria found to demonstrate indirect racial discrimination

By Jessica Bowman

The New South Wales Administrative Decisions Tribunal has upheld an employee’s claims of indirect racial discrimination because the employer’s selection criteria disproportionately excluded members of a certain race.

The employee worked as a grade-two pharmacist for a number of years. He applied for a grade-three position in March 2011, but was unsuccessful. One of the selection criteria was ‘demonstrated excellence in at least one clinical speciality practice’. The applicant (and all other Arabic pharmacists at the hospital) could not meet the requirement because he was a rotating, rather than a specialist, pharmacist. Even though this criterion was not the basis cited for rejecting his application, the employee was able to show that he would not have been able to satisfy the requirement for a promotion…

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