Crossing the line: Interview questions you can’t legally ask

By Robert Half on 5 January 2015

The purpose of a job interview is to gather as much information about potential employees as possible, so it’s not surprising that occasionally interviewers cross the legal line of what they can and cannot ask. Here’s how to avoid asking discriminatory interview questions.

Before 1975, employers could throw all kinds of hairy questions at their potential employees, but the introduction of the Commonwealth Racial Discrimination Act (1975) brought an end to this kind of freestyle interrogation. Since then, the government has instituted seven Commonwealth acts to sanction equal opportunity.

So what does this mean for employers looking to hire? It means interviewers cannot ask questions that force a person to reveal information the interviewers may then use against them when narrowing down the best candidates. So treating one potential employee with a certain personal characteristic less favourably than a person without that characteristic is tantamount to discrimination.

What are the areas to avoid?

As well as the federal acts that cover discrimination, each state and territory has introduced its own equal-opportunity legislation, so there’s a broad range of grounds upon which individuals can prove discrimination. Avoiding these grounds (and questions) is the easiest way to avoid breaching discrimination acts:

  • Age: “How old are you?”
  • Disability/impairment (physical and mental): “How many sick days did you take last year?”
  • Family/carer’s responsibilities: “Are you the carer for your elderly family members?”
  • Marital or relationship status: “Are you married?”
  • Parental status: “Do you have children?”
  • Political beliefs and activities: “Are you a Liberal voter?”
  • Pregnancy: “Do you plan on becoming pregnant any time soon?”
  • Race: “What’s your nationality?”
  • Religious beliefs and activities: “Are you Christian?”
  • Gender (including sexual harassment): “Females rarely succeed in this industry.”
  • Sexual orientation: “Are you gay?”
  • Union or employer-association membership: “Are you a member of the union?”

In Victoria, it’s also unlawful to discriminate against a person on the grounds of ‘physical features’. So asking questions such as “What is your height/weight?” or commenting on a person’s haircut, for example, are unlawful in that state. The need to avoid being discriminatory also applies to job advertising and other recruitment activities. Keep the above areas out of materials relating to employment and make sure you write proper job descriptions.

How do you legally obtain personal information?

It’s important to phrase questions by identifying the specific tasks and requirements of the role, rather than concentrating on the characteristics of the candidate. For example, if the role requires travel and the company needs to know whether the candidate can travel without worrying about the responsibility of children, instead of asking, “Do you have any children?” rephrase the question to “This job requires interstate travel. Are you able to spend time away from home?”

If the role is physically demanding, instead of asking “Do you have any health issues?” rephrase this question to “The role requires heavy lifting. Are you able to do this?”

Like many things in life, it’s not what you do – it’s how you do it. So when trying to obtain information from a candidate, consider how you phrase the question to avoid landing in discriminatory hot water.

This feature is intended as a general information piece. It does not constitute legal advice.

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