This was published 10 years ago
Chevron stillbirth questions legal, but it's what happens next that counts
By Michaela Whitbourn and Leanne Nicholson
A recruitment form used by global energy giant Chevron which asks prospective employees how many stillbirths they have had exposes a worrying loophole in the law, according to legal experts.
A West Australian applicant, Rae*, told Fairfax Media this week that filling out the seven-page form had been a "traumatic experience".
The form asks whether applicants have ever been pregnant and, if so, how many times; how many abortions and stillborn children they have had; how many "normal" children were born and if they had any birth defects.
"I can only imagine that if someone had a stillborn, if someone has a trigger, or was going through an experience like they were asking, these questions are entirely insensitive and offensive," Rae said.
This part of the application form asks about a complete reproductive history.
The medical form starts by asking name and age, then, under section F, titled Reproductive Outcomes, prospective employees are asked to provide intimate personal details, including whether they have been "sterilized" (sic).
Section F is listed as optional, but the company says it "would appreciate your response".
In another section, on past and present illnesses, applicants are again asked personal questions about pregnancy, however, there is no opt-out statement as there is on Section F.
Within questions about a range of illnesses, the form asks whether the applicant had "any discharge, lumps or pain in breasts", was "currently incapably of having children" or had "missed the last menstrual period" and asks for the date of their last period.
After querying sexually transmitted diseases, missed last menstrual periods and lumps in the breast this form includes a disclaimer saying not answering the questions truthfully could result in rejection of the applicant.
Giri Sivaraman, a workplace lawyer at Maurice Blackburn, said there was "no inherent unlawfulness about asking questions".
He said employees might have remedies available to them if they could prove that the employer used the information to discriminate against them or if the information was disclosed contrary to privacy laws.
But the questions were "not discriminatory until they were used against the applicant", he said.
"I think there's a real lacuna in the law here in terms of protecting employees during that [selection] process."
Mr Sivaraman said he had advised "thousands of employees over the last 15 years and have never seen a form like that. I'd hope that it's not taken up by other employers".
There is no legal prohibition in asking a range of questions and even offensive or intrusive ones
"I would have strong concerns about the information being used unlawfully against employees. Fundamentally there needs to be some sort of protection of the dignity and privacy of employees."
In a statement from Chevron, the resources giant said the medical documents were "guided by industry standards to ensure staff are safe and fit to work", and were lawful.
"Medical information, including an individual's medical history, is solely used by authorised medical professionals and any questions relating to reproductive history are explicitly voluntary and this is lawful.
"Candidates who meet the requirements of a position are not discriminated based on medical history."
Earlier, Slater and Gordon industrial and employment lawyer Simon Millman told Fairfax Media a recruitment form which asked such personal questions could breach several discrimination and privacy laws.
"I haven't seen a form like this before," Mr Millman said.
"It has to be asked, is the information that is being asked reasonable to the employee carrying out their job?"
Joydeep Hor, the managing principal of workplace law firm People + Culture Strategies, said: "There is no legal prohibition in asking a range of questions and even offensive or intrusive ones – the legal problem arises when the employer does something disadvantageous to the candidate as a result of their answer to the question.
"For example, candidates who were asked these questions by an Australian employer would only have been discriminated against if they were treated less favourably – in other words, someone who had had a childbirth difficulty in their life who answered honestly such a question who still was hired and had a normal career would not have any course of action."
Mr Hor said in his experience "most Australian employers were reasonably conservative with their interviewing techniques and quite respectful of boundaries.
"There's always a few renegade senior leaders who feel they can ask whatever they want but they are in the minority."
Rae said the form asked some questions not only of propsective employees, but also of their partners, including the question about being "sterilised".
"I was furious, how can I speak for my partner? On a form? It's not right," she said.
Mr Millman said a form similar to one distributed by Chevron could set a legal precedent if challenged.
"It may be the only way to know that definition is to have it tested in judicial proceedings," he said.
Chevron is a global oil and gas giant which is developing the Gorgon and Wheatstone LNG projects in West Australia.
Mr Millman said the Australia's anti-discrimination and privacy laws applied to potential or current employees of any company operating on our shores, no matter where it was based or how big it was.
"Just because the form is done in America, doesn't mean it is one size fits all," Mr Millman said.
Acting WA equal opportunity commissioner Allanah Lucas said the questions were not inherently discriminatory against female applicants, because it was unclear how the information would be used.
Nevertheless, Ms Lucas said she was surprised that the questions had appeared on a job application, and said she did not understand the rationale for using them.
"Of course people would be concerned if the information is used wrongly, but we don't know the context as to why (the questions) are being asked," she said.
The commission had not received any complaint about Chevron's recruitment practices, Ms Lucas added.
In contrast with other forms of workplace discrimination, Ms Lucas said it was difficult to prove that a specific candidate has been passed over for a new job on the grounds of gender or potential future pregnancies.
with Michael Hopkin
*Name has been changed for confidentiality