The spousal conundrum: Refusing to employ someone’s spouse

Is it discrimination to refuse to employ someone because their husband or wife works for a competitor? Let’s find out.

Consider this scenario.

You’re looking to employ a new sales representative. You select the person that’s most ideally suited for the position. But after doing a reference check, you discover the spouse of your selected candidate works for your biggest competitor! You feel there’s a real danger of your agency’s clients being exposed and you decide to withdraw the offer of employment to the candidate.

Is this discrimination? Could you be leaving your agency open to action under the general protections provisions of the Fair Work Act 2009?

In this scenario, the job candidate was rejected for reasons specifically relating to the spouse; i.e. employment of the spouse with a competitor could create a conflict of interest.

An extended meaning of “marital status” in discrimination legislation to include the characteristics of a person’s spouse has generally been rejected by courts and tribunals. It doesn’t extend to the identity or situation of one’s spouse and therefore no discrimination would occur.

However, it would be discrimination if a person is not hired due to the perceived stereotypes relating to that person’s marital status.

If in doubt…

If your business is confronted with a similar situation relating to marital status, call the REEF Helpline on 1300 616 170 to discuss the matter with one of our Workplace Relations Advisors.