A sportswear company in Australia recently caused a storm of protest on social media when it advertised for a “receptionist/ fit model”. The controversy was grossly over stated as it turns out because a fit model is an expression within the trade for a person who can model clothes to assist the designers and was not intended to be are reference to being “fit” in the physical or image sense and the company did indeed want to recruit a person who could undertake dual administrative and design modelling.
Nevertheless, it does beg the question, does a job advertisement contravene any legislation when it specifies as a requirement a particular appearance or physical attribute? The answer for employers in the national fair work system is no.
Under the Fair Work Act it is unlawful to discriminate in employment on the basis of a person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origins. There is no mention of appearance.
The answer is also no in Western Australia where it is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or breast feeding. It is also unlawful for a person or company to discriminate against a person by way of sexual harassment, on gender history grounds or family responsibility or status, on sexual orientation, race, religious or political conviction, impairment, age, and in certain circumstances where the identity of a person is published on the Fines Enforcement Registrar’s website.
The position is otherwise in Victoria however where it is unlawful to discriminate against a person on the ground of physical features which is defined in the Equal Opportunity Act 2010 to include height, weight, size , shape and any other “bodily characteristic” including facial characteristics, hair and birthmarks but there is an exception (a way out) if the position is for a dramatic or an artistic performance, photographic or modelling work or any similar employment, in domestic employment in the employer’s home and such discrimination may also be permitted if it is reasonably necessary to protect the health, safety or property of any person including the person discriminated against.