Issue of Unethical Discrimination Practices in Hiring

Suppose that a major retail chain orders its human resources department to screen out all shop floor applicants who are obese, and to ask all short-listed applicants whether they have a criminal record, any history of drug abuse, or any recurring problems of mental illness. Is such a directive consistent with your ethical views? Explain your answer.

Introduction

Nowadays, due to the impact of population expansion and globalization, the number of people waiting for employment in different regions is becoming larger and larger, the types of these people also have many differences. On the issue of employment, due to a large number of job seekers, the competition becomes very fierce, and also raises the threshold of employment. So, some special people are less likely to be treated fairly. For example, people with disabilities, obesity, or criminal records. Although the government has introduced the first anti-discrimination law in 1975 (Australian Government (AG), n.d.), the proportion of prejudice and discrimination is still rising (Latner and Stunkard, 2003). There are several issues in the base of the topic, so that the thesis needs further discussion. First, a large retail chain asked its human resources department to screen out all the obese shop floor applicants. Second, among these remaining people who will be selected to pass the short- list, they were asked some questions that may be seen by some as ‘invasive’. For instance, questions about whether they had a criminal record, a history of substance abuse or any recurrent mental illness. This paper will detailly analyze and discuss these two main problems and provide several recommendations to solve them.

Background

Employment discrimination, simply speaking, refers to the employer in the process of employment of workers ‘separate treatment’. Employment discrimination is a ‘cancer’ of the labor market and a departure from the spirit of the rule of law (Shaw, Barry, Issa, Catley, and Muntean, 2016, p. 363). The Australian government (Fair Work Ombudsman (FWO), n.d.) clearly points out that people should be protected from discrimination at work because fair employment is the entitlements of employees. Employment discrimination not only violates the equal employment rights and dignity of job seekers but also undermines the effective order of the labor market to some extent. Therefore, many job seekers will lose their jobs, which will cause a huge waste of talents and have a huge negative impact on the healthy development of the market economy. Also, except the ‘separate treatment’, there is a word with some distinct meaning to some extent. It is called ‘reasonable difference’ that employers can limit the recruitment conditions according to the nature of the position, demand and other relevant factors. For example, the restriction is a social attribute formed through acquired learning and training, such as experience, ability and so on. These restrictions do not constitute employment discrimination and can be understood as a ‘reasonable difference’, which should be accepted by law. In addition, if a particular industry has unique needs, such as the applicant’s age, height, and other requirements, should follow the principle of publicity (Kvalnes, 2015), fully explain the rationality and necessity of the restrictions. Nevertheless, when it comes to the topic, owing to the company is a large retail chain, which does not need to consider the issue of obesity or other things in the recruitment of future employees. The limitation in the “reasonable difference” may have some considerations of ability, experience, educational background and specialty.

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The reasons for the existence of dislike or discrimination in the workplace have a great deal to do with the pressure of economic, effect of traditional thinking, and lack of diversity training. The primary reason is economic pressure. When some state governments carry out local administration, they will certainly start from the perspective of promoting the economic development of indigenous companies. For example, when the fiscal crisis arises and the government needs to temporarily shut down some companies, it must start from weak non-local companies. Then, the second factor for employment discrimination is the influence of traditional ideas (Finn, 2018). The older generation will stubbornly believe that young people are not eligible enough, and their mentality is not as mature as them. Similarly, they may also think that women are not so capable as men. A final factor is a lack of diversity in training (Finn, 2018). Some executives don’t understand the benefits of a diverse workplace and different types of workers can attract different customers and then increase the revenue for the company.

Analysis (Q1)

In the first question mentioned above, the enormous retail chain asked its human resources department to screen all obese applicants out. This directive is definitely immoral but illegal to a large extent.

Generally, this directive is immoral. In this case, the company required the human resources department to screen obese people among numerous applicants in the first step of hiring prospective employees, which is a behavior of prejudice and discrimination against overweight people. Ximena Ramos Salas (Weight bias and public health, 2018), who is a managing director of University of Alberta-based Obesity Canada, explained that weight bias is a person’s attitude or belief about other persons because of their weight – for example, ‘Those persons are too fat. They are obviously lazy, unmotivated and lack willpower.’ Everyone has his or her own ‘Virtue Ethics’ because as a rational existence, people’s sense of responsibility comes from the heart. However, that doesn’t mean people can prescribe whatever they like or eliminate whatever they dislike. They are bound by rational demands and constraints. Human beings are rational creatures capable of setting their own goals, and this rational nature should prevent people from disrespecting the dignity of others in order to achieve their own self-interest (Shaw, Barry, Issa, Catley, and Muntean, 2016, pp. 56-60). In W.D. Ross: a less rigid approach to moral principles (Shaw, Barry, Issa, Catley, and Muntean, 2016, p. 68), it is mentioned that people have the obligation not to harm others. The chain may assume that it has an implied employment relationship with the applicant, that is, an unequal relationship. That’s right, but only if the company treats all applicants equally. The cause is all applicants for the shop floor are on the same level. They are equal to each other, and they all need to be evaluated at the same level. The obese applicants among them cannot be discriminated against because of prejudice.

Of course, selecting obese people is only a part of the behavior. At this stage, after the company picking out these obese people, whatever the next step, the company is clearly breaking the law. Either the chain decides to discriminate against them and test them differently or excludes them from the job application list, Under the Fair Work Act 2009 (FW Act)- Sect 351 (No.28, 2009), ‘The fair work ombudsman may take enforcement action if an employer takes adverse action on grounds of discrimination … including making threats or refusing to hire future employees or discriminating against future employees in terms and conditions of employment.’ Therefore, this behavior of the retail mall is immoral and illegal. It cannot be discriminate against applicants because of their appearance defects. What’s more, obesity can’t be regarded as a physical defect. The generation of obesity is partly due to the sub-health state caused by excessive nutrition. As long as the diet control, adhere to exercise can be restored to a healthy state.

Analysis (Q2)

When it comes to the second question mentioned above. After excluding all obese applicants, the subsequent directive from big retailers to human resource department was to ask the remaining applicants about some ‘invasive’ questions, such as whether they had a criminal record, a history of drug use or any recurring mental illness. The purpose of the company is likely wanting to screen all applicants who have these ‘historical records’ through these two directives. However, corporate discriminately excludes all obese people at first. This might be due to the manager simply dislikes and deliberately discrimination against them, and then screen them out (which was discussed in the first question). Second, the happening of this behavior is also likely due to the discriminatory misunderstanding of the obese. The manager might think that obese people must have one or two ‘historical records’ which tailed above. So, these obese people were directly excluded. In Navarro’s video (n.d.), she talked about the ‘unconscious bias’, which refers to unconscious misunderstanding or unfounded assumption of someone who belongs to a group. Thus, failing to give this person a fair opportunity.

In this part, the questions posed by the company are very intrusive and might affect people’s self-respecting. It is understandable that enterprises want to create a harmonious and positive working atmosphere. However, it’s morally and legally wrong if the company doesn’t want all the people who have ‘record’. Of course, it is appropriate if the company just wants to find out the background of each applicant, and then consider whether to hire them according to the situation. However, the investigation must be conducted in an one-on-one and strictly confidential manner. The company needs to look at whether applicants will be honest about their answers. People have ‘historical record’ may be due to poor performance in the past, but it does not mean that they are or will be bad in the future. Moreover, companies should think differently about each question. When asking about whether they had criminal records, the chain should consider that even people with extensive criminal convictions can be positively improved through rehabilitation programs and various forms of social inclusion. In response to questions, companies felt those job seekers had a responsibility to honestly disclose their criminal records in response to requests. However, people with criminal records are often acutely aware that they may be disadvantaged by their criminal records. They may decide not to disclose as a result (Australian Human Right Commission (AURC), n.d.). Similarly, while asking the question of whether there is a history of drug abuse, the chain should also consider if there is a person which is one of the many applicants, like Sanju in the Indian film ‘Generation of Superstars’ (2018), used to take a lot of drugs, but successfully got rid of drugs later by using his strong willpower. Larry Keast, CEO of Venturetech, said a positive attitude from former addicts can boost morale (Venturetech, 2015). In addition, by providing opportunities for former addicts, companies can also enhance their corporate social responsibility. However, the unfortunate truth is that drug withdrawal may be very clean, but there is also the possibility of relapse (Hava, 2017). According to the National Institute on Drug Abuse (NIDA, 2018), the relapse rate is 40-60%. Since the risk of staff turnover and lost productivity are expensive, it’s understandable if the chain does not want to hire someone with a history of drug use. When asking the question which if there is someone has any recurring mental illness, shows that the retailer is concerned about safety. A company has an obligation to take care of its employees: to avoid careless or unnecessary dangerous substances, and to avoid reckless or unnecessary risks (Work Safe, n.d.). So, it is comprehensible to exclude applicants with severe mental illness if their health will affect working. If the degree of mental illness is minor, the company may still consider the admission of these applicants. The reason is that BeyondBlue reports that there are 45% of Australians will experience mental health conditions in their lifetime (Chandler, 2018). However, in all, the chain cannot turn down applicants just because they had a criminal record, a history of drug use or recurrent mental illness. The reason is that this behavior still counts as employment discrimination and violates the Fair Work Act. Under the Fair Work Act 2009 (FW Act), ‘The fair work ombudsman may take enforcement action if an employer takes adverse action on grounds of discrimination, … including discriminating against future employees in terms and conditions of employment’. There is another cause, these records only represent the past, it is good as long as they are corrected because everyone will make mistakes.

Methods

In response to the two questions raised above, there are a few suggestions for large retailers and applicants respectively. There are five suggestions for business executives. First of all, the chain can put forward some requirements when public the recruiting, such as education level and work experience. Second, it is wrong to screen all obese applicants out. The job fair should be open to all applicants, and all applicants should be treated equally. Then, ‘intrusive’ questions can only be confidentially asked if the position requires to consider this information (AURC, n.d.). Then, applicants with ‘historical record’ should also participate in the second interview, and then be selected on the basis of merit and cannot discriminate against those with ‘historical record’. Finally, after recruitment, the company can develop a health plan to encourage employees to adopt a healthy lifestyle. There also have four suggestions for applicants. First, obese persons have the right to appeal and reject unfair non-employment (FWO, n.d.) as a consequence of discrimination. At the same time, obese people should also consider their own health, pay attention to diet and exercise. Second, applicants should fully disclose (Power, 2014) their historical records, because the relationship between employers and employees is based on mutual trust and honesty. They should believe that the company has its own reasons for asking these questions. Third, after the information has been collected, the applicant has the right to have recourse to the court if the company does not hire the person simply on the pretext of having a ‘historical record’. Finally, if people with ‘historical records’ are hired, they must be more determined to create profits for the company with a grateful heart.

Conclusion

In general, it is unethical and illegal for this huge retailer to exclude all obese people at first, and then it is immoral and unwise to ask the short-listed applicants with ‘intrusive’ questions. Even if there are policies and regulations in society, there still have some employment discriminations in life. However, this wrong behavior cannot be ignored and tolerated. It will become a social hidden danger while citizens left this behavior for a long time. Therefore, the problem of employment discrimination must be taken seriously. The principal methods are employees should know their rights and employers should ensure fairness.

References List

• Australian Government (AG). (n.d.). Australia’s anti-discrimination law. Retrieved from https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Australias-Anti-Discrimination-Law.aspx
• Australian Human Right Commission (AURC). (n.d.). Human Rights: On the record: Recruitment (Chapter 5). Retrieved from https://www.humanrights.gov.au/our-work/human-rights-record-recruitment-chapter-5
• Chandler, A. (2018). Managing an employee with mental health issues – what you need to know. Retrieved from https://www.hcamag.com/au/specialisation/corporate-wellness/managing-an-employee-with-mental-health-issues-what-you-need-to-know/152191
• FAIR WORK ACT 2009 (NO. 28, 2009) – SECT 351. Commonwealth Numbered Acts. Retrieved from http://www5.austlii.edu.au/au/legis/cth/num_act/fwa2009114/s351.html
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