Your rights: Ad is discriminatory

Q. I have seen an advert for a job I would like to apply for, but the ad says they are looking for a "native English speaker". My English is excellent, but I lived in Brazil (and spoke mainly Portuguese) until I was 14. Is this ad legal?

A. I don't think it would be. An employer cannot discriminate on the basis of person's ethnic or national origin. Asking for "native English speaker" (presumably meaning someone who grew up speaking English as a first language) probably amounts to discrimination on the grounds of ethnic or national origin.

I say "probably" because, if there is a legitimate reason for this requirement, the ad may be legal. However, it's doubtful that a good reason exists here.

If the job legitimately requires someone who is fully fluent in English, as many jobs do, it is fine for an employer to say that applicants must "have excellent written and oral English skills", or something similar.

For example, if the job involves a lot of telephone communication, it may be important that the applicant is fluent in English and, in particular, can be clearly understood by others. However, an employer cannot simply assume that only native English speakers will have these skills.

A "non-native English speaker" therefore has a legal right to apply and be considered for this job on the same basis as a native speaker. Obviously, this doesn't mean an employer must employ a non-native speaker - but they must give all applications fair consideration.

What should you do if you want to apply for this job? The best approach is to send in your application with a letter pointing out that, although you are not a "native speaker," your English is excellent, pointing to any relevant qualifications/experience, and requesting your application be given fair consideration.

If you don't believe you receive this, you are entitled to make a complaint. The easiest way to do this is to contact the Human Rights Commission on 0800 496 877.

Even if you don't want the job, you are also entitled to make a complaint about the ad. Again, the best option is to contact the commission or, if you wish, you could complain directly to the employer.