Lawyers say a series of questions posed by Big Four accounting firm KPMG to job applicants about their sexuality and gender could pose a major legal risk.
The questions – which are not mandatory to answer – come as part of a push by the major professional services firm to promote an “inclusive workplace” that “values diversity”.
KPMG asks job seekers on their forms for their gender, preferred pronouns and sex.
Labor lawyer Mia Pantechis, who works at Maurice Blackburn, told Daily Mail Australia the questions could be seen as discriminatory and the company could face legal action.
Some of the questions KPMG asks candidates, as seen on the Big Four accounting firms website
Labor lawyer Mia Pantechis (pictured) told Daily Mail Australia that KPMG’s questions should be avoided as they could amount to unlawful discrimination
“In recruitment processes, questions should be aimed at determining a candidate’s ability to fill the role,” she said.
“Asking unnecessary questions and seeking information about certain characteristics should be avoided and may constitute unlawful discrimination.”
Ms Pantechis pointed to the Fair Work Act 2009 and the Sex Discrimination Act 1984 as two laws the questions could breach.
“The Fair Work Act 2009 (Cth) prohibits employers from discriminating against potential employees on the basis of gender and sexual orientation,” she said.
‘The Sex Discrimination Act 1984 [makes it] It is illegal to discriminate against an applicant on the basis of sex, sexual orientation, gender identity or intersex status when determining whether to offer employment and the terms and conditions of employment to be offered .
“Any questions about these protected attributes send a signal that hiring decisions will be based on, or at least consider these factors.”
Ms Pantechis said if the information gathered from these questions was ‘used to make decisions about who to hire and what terms of employment to offer, it would amount to unlawful discrimination’.
She added that the questions would be considered a “special measure” and not contentious if they were purely designed to achieve equality between people with different gender identities and sexual orientations.
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Amy Zhang, a lawyer for Harmers Workplace Lawyers, echoed Ms Pantechis’ responses when she spoke to the Financial Review.
“It’s always risky to ask these kinds of questions at the application stage,” she said.
“A better approach would be to send an anonymous survey after the recruitment process is complete.”
In addition to asking about gender, sexual orientation and pronouns, KPMG also asks job seekers if they have had a “transgender or other history or experience (including, but not including limited to, Brotherboy/Sistergirl, Third Gender)” and whether they “have intersex variation”.
“Brotherboy” and “sistergirl” are terms used by Indigenous communities to describe transgender people. The third gender refers to people who are characterized as neither male nor female.
Intersex is defined as a term for people born with “atypical physical sex characteristics” or a combination of male and female biological traits.
The Big Four accounting firm KPMG asks job seekers if they have had any “trans or other-gender background or history (including, but not limited to, Brotherboy/Sistergirl, Third Gender)” and whether they “have an intersex variation”
KPMG stressed that the information gathered from the answers to these questions would not affect a job seeker’s candidacy.
“At KPMG, we are committed to creating an inclusive workplace that promotes and values diversity,” a spokesperson told Daily Mail Australia.
“We welcome and encourage applications from people of all backgrounds, ages, religions, including Aboriginal and Torres Strait Islander peoples, LGBTIQ+ people, people with disabilities, and people from diverse cultural or linguistic backgrounds.”
The KPMG representative added that the application process “poses a wide range of questions about the backgrounds of applicants who are willing.”
“We use them in an aggregated way to build a statistical picture of our progress in achieving a diverse workforce.
KPMG employs over 10,000 people in Australia.
Gender identity questions asked on KPMG applications
1. Please select the identity below that best describes your gender:
Female, male, non-binary, gender fluid, agender, prefer not to say, other (please use free text)
2. Do you have any trans or other gender diversity experience or history (including but not limited to Brotherboy/Sistergirl, third gender)?
Yes, no, I prefer not to say
3. Do you have an Intersex variant? (Intersex is a term for people born with atypical physical sex characteristics. There are many different intersex traits or variations.)
Yes, no, I prefer not to say
4. Please indicate your pronouns (optional)
5. Which of the following statements best describes your sexual orientation?
Lesbian/Gay Woman, Gay, Bisexual, Pansexual, Asexual, Queer, Straight/Straight, Prefer Not to Say, Other