Employment and Migration Blog

Lorna Jane looking for a size 8 model – discriminatory or not?

Posted by Stephen Booth, Lisa Qiu on 6 Aug 2015

Australian active wear designer, Lorna Jane, landed herself in hot water recently for advertising for a Receptionist/Fit Model who needed to be a size “small” with specific bust, waist, hip and height measurements. Talk about discriminatory!

Or was it?

A closer look at the ad shows that the duties of the role were split between receptionist duties and assisting the design team with fittings of new garments. Lorna Jane hit back against allegations of discrimination and size-ism by explaining that the role of a Fit Model is to ensure that a particular garment is made to size. Quite simply, to make sure that a size 8 garment fits a size 8 body, you need a size 8 body to measure it against.

So when will requiring a specific body type, for a specific role, be discriminatory and when will it not?

The Fair Work Act says that action isn’t discriminatory if it is taken because of the inherent requirements of the particular position concerned and similar provisions are found in discrimination legislation.

In this particular case, it was an inherent requirement of the role of a Fit Model to be a particular size so the action wasn’t discriminatory. If however the position had called for a size “small” with blonde hair, the “blonde hair” requirement wouldn’t be part of the “inherent requirements” of the Fit Model role and may have been discriminatory. 

Conversely, if the position was to sample hair dye for blonde hair, advertising for someone with “blonde hair” wouldn’t be discriminatory, but advertising for someone that was a size “small” with blonde hair, could be. Just as advertising for a receptionist (with no Fit Model duties) with physical specifications might be discriminatory.

However, it's important to bear in mind that making a choice based on physical features is not in itself discriminatory, except in Victoria where the law prohibits discrimination on that basis. In all other jurisdictions, the issue is whether the requirement for the employee to have a particular appearance is discriminatory because it excludes older people, or people of a race or sex which will generally not meet the criteria. Some airlines and TV stations have got into strife for their apparent preference for younger-looking female cabin crew and presenters.

So, as a general rule, if you do specify physical requirements for a role, and especially if you are advertising on that basis, make sure that the requirements are genuinely requirements for that role. And be ready for a social media storm.