Why are some questions prohibited in interviews?
In Australia, the Fair Work Act prohibits employers from discriminating against their current and prospective employees on grounds of attributes such as race, sex, sexual orientation, age, disability, relationship status, family responsibilities, pregnancy, religion, political views or social background. Any questioning relating to those attributes is therefore often inappropriate.
Certain interview questions, especially ones that ask applicants about their personal circumstances, are therefore considered intrusive and may even be unlawful under Australian employment and anti-discrimination legislation.
If you do ask an illegal question, applicants have a right to refuse to answer it and may even choose to pursue legal action through regulators such as the Australian Human Rights Commission, the Fair Work Commission or the Fair Work Ombudsman.
What are some interview questions not to ask?
When you hire someone, you want to be sure they’re the right person for the job. But be aware that there are some limitations when it comes to what you can ask applicants when you interview them.
Here are some prime examples of what type of questioning to avoid in your next recruitment round.
1) Are you planning to start a family soon?
According to the Fair Work Ombudsman, ‘an employee can’t be discriminated against because they’re pregnant. This means that an employee can’t be fired, demoted or treated differently from other employees because they are pregnant.’
Therefore, as an employer, it is unlawful not to hire an applicant because they may eventually need to take some time off to go on parental leave. Asking about an applicant’s pregnancy status or intention to fall pregnant is therefore highly inappropriate.
2) Do you go to church?
As an employer, you are not entitled to ask about your staff’s religious views or affiliation. Their beliefs should not impact their ability to perform their job, so they are not relevant in the employment context.
Needless to say, it’s also unlawful to discriminate against employees and applicants on the basis of their religion, or lack of it.
3) Are you married?
An applicant’s marital or relationship status should not be something an employer needs to know about. For one, it is unlawful for companies to discriminate on the basis of marital status. What’s more, whether a person is single or in a relationship does not affect their ability to perform their job, so it’s highly irrelevant.
4) Do you have any LGBT+ friends?
First of all, a person’s sexual orientation – or that of their friends or family members – obviously has no bearing on the applicant’s ability to perform their job.
Secondly, Australia has legislation in place that prohibits any discrimination in the workplace based on gender identity and sexuality, as well as association with someone of a certain sexual orientation or gender. This question is therefore a big no-no.
5) Do you have any children?
Under the Sex Discrimination Act, employees and candidates cannot be treated less favourably than someone else because they have children – this may be considered discrimination on the grounds of family responsibilities.
In addition, the Fair Work Act grants prospective employees the same workplace rights as someone already employed. So, this is not a question you should be asking in an interview.
6) Do you have a disability?
Both the Fair Work Act and the Disability Discrimination Act 1992 make it unlawful for an employer to discriminate against a person on the basis of their disability when deciding whether or not to hire them. An applicant, therefore, does not need to disclose any existing mental or physical disability during an interview.
7) Who did you vote for in the last elections?
While employers may want to find out what values a candidate stands for, their political affiliation or views on particular issues cannot be taken into account during recruitment.
Australian employment laws prohibit discrimination on the grounds of political views, and some states have further anti-discrimination legislation in place that protects both existing and potential employees against being treated unfavourably because of their political views.
So, in a nutshell, you really don’t need to know who someone voted for in the last elections!
8) Can we look at your social media accounts?
Although you may ask this question, the applicant is in no way obliged to show you the content of their private social media pages. Any content they may have set to private and not for public viewing does not need to be disclosed to you as a potential employer.
Naturally, if your business has a social media policy to avoid bringing the company into disrepute, it’s well worth mentioning this at the interview.
9) Are you a member of any union?
Under the Fair Work Act, as well as some states’ anti-discrimination laws, it is unlawful to discriminate against someone because they are affiliated with a trade union. This is therefore a question that should be avoided in interviews.
Conversely, applicants who are not members of a union must also not be discriminated against in a highly unionised workplace, so this question is always inappropriate.
10) What is your ethnic background?
This question is unlawful under the Racial Discrimination Act.
11) Do you use drugs?
This is largely an inappropriate question for an interview, as it relates to the applicant’s personal life. However, there are workplaces with an anti-drug policy and random drug tests, which the employee would have to accept when they commence employment.
In addition, if the employee will be operating heavy machinery, it may be reasonable to ask whether they take any medication that may affect their ability to carry out this part of their role.
12) Have you ever filed for workers’ compensation?
Asking an applicant if they have ever made a workers’ compensation claim may be unlawful. You cannot discriminate against someone on the basis of them having made a previous claim for compensation out of worry that they might still be suffering from an illness or impairment as a result of an incident, or because they may be more likely to take legal action in order to defend their rights in the workplace.
Related: Phone Interview Questions to Ask Candidates
As you can see, conducting an interview can be a minefield. But there are still a plethora of questions you can ask without getting yourself or your business into hot water.
What are some legal interview questions to ask?
Of course, there are some circumstances in which some degree of personal information is relevant to the position the candidate has applied for. You will want to make sure that your new hire meets appropriate resident requirements and is entitled to work in Australia.
Or a role may require some heavy lifting, in which case it is reasonable to ask about the applicant’s physical ability to perform this part of the role. Such questions are not unlawful if this information is relevant to assessing the candidate’s ability to carry out the duties associated with the job.
Other potentially sensitive questions can be worded in a certain way to approach a concern appropriately. Examples might be:
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Are you an Australian citizen, or do you have the right to work in Australia?
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What languages do you speak fluently?
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Do you have any commitments that might prevent you from working certain shifts or hours?
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Would you be able to travel for work if required?
- Do you have a current driver’s licence and a means of transport if needed for the role?
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What are your hobbies, and what activities do you like to do in your leisure time?
- Why did you leave your previous place of employment?
For more inspiration on good interview questions, read our article on the Best Interview Questions to Ask Candidates.
If you keep these tips in mind, you should feel confident the next time you are interviewing potential new hires. Refer back to this guide to avoid potential recruitment pitfalls and make the most of your interviews to get the best people on board.
