Can your husband derail your career?

Q&A

Can your husband derail your career?

Can you reject a job applicant because their partner works for a competitor? Paul Munro explains.

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Can we reject a job applicant because her husband works for a competitor?

This question was recently sent to our Ask an Expert service.

Q Our company recently advertised for casual sales representatives. After doing some reference checks, we discovered the husband of one applicant works for our biggest competitor. We determined there is a danger of the company’s clients being disclosed. The company informed the employee of the reason behind our decision to withdraw the offer of employment. The applicant has now threatened to take an adverse action claim against the company on the grounds of discrimination due to her marital status.

Could this be considered discrimination and expose the company to action under the general protections provisions of the Fair Work Act?

A In this case the applicant was rejected for reasons specifically relating to her husband, that being that his employment with a competitor could create a conflict of interest. An extended meaning of ‘marital status’ to include the characteristics of a person’s spouse has generally been rejected by courts and tribunals.

There would be concerns if the company prohibited the employment of a spouse for the sole reason that the grounds for prohibition were based on that employee’s marital or family relationship with a current employee.

Courts and tribunals have generally determined that the definition of ‘marital status’ does not extend to the identity or situation of one’s spouse and therefore no discrimination would occur. See Boehringer Ingleheim Pty Ltd v Reddrop [1984] NSWSC.

Fair Work Act


There are general protections under the Fair Work Act which apply to prospective employees and provide protection from adverse action (such as not being hired) by the employer, if the reason is based on discrimination.

Generally, discrimination on the grounds of marital status relate to three specific situations:

(a) discrimination against a married person simply because he/she is married and for no other reason
(b) discrimination against a married person because of some particular characteristic which the individual has and which all or nearly all married persons have, and
(c) discrimination against a married person on the ground of some particular characteristic which married persons are generally believed to have whether or not they in fact have it.

Discrimination due to marital status


Under the Sex Discrimination Act 1984 (Cth), a person discriminates against another person on the ground of their marital or relationship status if the discrimination occurs by reason of:
  • their marital or relationship status
  • a characteristic that applies generally to persons with that marital or relationship status, or
  • a characteristic that is generally suggested to apply to persons of that marital or relationship status.
Marital or relationship status means the condition of being:
  • single
  • married
  • married but living separately and apart from one’s spouse
  • divorced
  • widowed, or
  • the current or former de facto spouse of another person.
The bottom line: Courts and tribunals have generally determined that the definition of ‘marital status’ does not extend to the identity or situation of one’s spouse. Discrimination occurs when a person is not hired due to perceived stereotypes relating to the person’s marital status. The employer should seek legal advice if the applicant wishes to take this matter further.
 

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