Workplace Discrimination - Interview questions you can’t ask

22 November 2019 in Articles

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An employer’s liability for workplace discrimination may arise even before a candidate’s first interview and exists whether or not the candidate is ultimately offered a position by the employer. A job interview is integral to the recruitment process and provides an opportunity for the employer to ask questions, check credentials and determine a prospective employee’s suitability for a position. It also provides reciprocal opportunities for candidates to find out more about the role and the organisation and to assess their interest in the position. Naturally, both parties want to find the ‘right fit’, however, the employer is largely in control of the interview process and may go about finding the right person in the wrong manner. By asking a candidate certain unlawful questions during the interview process, employers risk breaching Commonwealth and/or State laws aimed to protect individuals against discrimination in the workplace.

So, what are unlawful questions?

When interviewing a candidate for a position, the primary focus of the questions asked should be to assess the applicant’s ability to perform the key functions of the role. Employers should avoid asking questions about certain unlawful factors for which a candidate’s answer could be construed as determinative to the success, or otherwise, of his or her application. These include questions about age, gender, sexual preference, ethnicity, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or social origin. Essentially, these matters are considered irrelevant in determining a person’s capacity to perform the role. Even seemingly innocent questions (such as those that might be asked during the course of social conversation) could be considered unlawful during a formal interview. The following are some examples:
  • How do you manage work with three children?
  • How old are you?
  • Does your disability prevent you from carrying out your job?
These questions have something in common – they are questions that might be asked of a particular category of applicants (those with children, over 50 years of age or with a disability) that would not necessarily be asked of other applicants. Other questions that may result in a discrimination complaint include:
  • What is your religion?
  • Where were you born?
  • Are you working at the moment?
  • Have you had a workers’ compensation claim?
These questions are unnecessary when determining an applicant’s ability to carry out the duties required of the role and should be avoided. Deciding that an applicant is unsuited for the position based on an answer to one or more of these questions may result in a discrimination action.

Asking the right questions

Potential claims for discrimination can be minimised by re-thinking your approach to how questions are asked and having a detailed job description to refer to during the interview process. This helps keep the interview on track and ensures only the essential requirements of the position are addressed. If you would like to know more about how to ask the right questions at your next interview and avoid a potential discrimination claim, please contact us.