A Discriminatory Job Notice in a State Agency
A state agency advertises a junior administrative officer post. The notice requires: 'candidates under 30', 'excellent physical condition', 'native Macedonian speaker', and 'no disability that would impair computer work'. The tasks are routine filing, data entry, and reception at a counter on the ground floor. A 34-year-old Roma woman with a hearing impairment applies. She has three years of clerical experience, uses a hearing aid, and can perform the tasks with an amplified telephone and written communication. She is not shortlisted. The agency says the age and physical requirements are 'standard for a young, dynamic office', the native-speaker rule is needed for 'clear communication with citizens', and accommodating her would be too costly because the office has no lift. She complains to the Commission for Prevention and Protection against Discrimination.
1. Identify the potentially discriminatory criteria and assess whether any can be objectively justified as a genuine occupational requirement.
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Several criteria are problematic:
- 'Under 30' is direct age discrimination unless the agency can show a genuine occupational requirement. A young, dynamic office is not a lawful justification for excluding older candidates.
- 'Excellent physical condition' is vague and unrelated to filing, data entry, and reception. It may indirectly exclude candidates with disabilities and is not objectively justified by the tasks.
- 'Native Macedonian speaker' can be indirect ethnic discrimination against Roma candidates and others. A genuine occupational requirement might exist for certain language-teaching or legal-drafting posts, but clear communication with citizens can be achieved through language proficiency, not native-speaker status.
- 'No disability that would impair computer work' is direct disability discrimination. The agency must assess the actual tasks and reasonable accommodation, not exclude on a blanket medical assumption.
The agency's justifications are stereotypes or cost claims, not genuine occupational requirements. The lack of a lift is irrelevant to a ground-floor counter and, in any event, points to the duty to accommodate rather than to exclude.
2. How should the burden of proof and reasonable accommodation analysis work, and what remedies could the Commission order?
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The complainant has put forward facts from which discrimination can be presumed: a job notice with exclusionary criteria, a qualified candidate from a protected group, and a failure to shortlist. At that point the burden shifts to the agency to prove that its criteria were objective, proportionate, and unrelated to discriminatory intent.
On reasonable accommodation, the agency must consider adjustments that enable a qualified person with a disability to perform the job. An amplified telephone and written communication are low-cost measures. The agency cannot rely on the absence of a lift for a ground-floor post. It should assess the actual barriers and the cost, not assume incapacity.
The Commission can order the agency to:
- cease the discriminatory practice;
- revise the job notice and shortlisting criteria;
- reconsider the complainant's application through a fair process;
- provide compensation for non-pecuniary harm if the law allows; and
- adopt preventive measures, such as training and inclusive recruitment guidelines.
The reasoning should connect each remedy to the specific barrier identified, not merely declare that discrimination occurred.