It is crucial that employers understand their legal obligations during the recruitment process. One area that often causes confusion is the type of questions you can and cannot ask during job interviews. Asking discriminatory questions can have serious legal consequences, so it is important to approach interviews with care and awareness of the law.
What are discriminatory questions?
Discriminatory questions are those that directly or indirectly relate to a candidate’s personal characteristics that are protected under anti-discrimination laws. These characteristics include, but are not limited to:
- Age
- Gender
- Sexual orientation
- Marital or relationship status
- Pregnancy or potential pregnancy
- Family or carer responsibilities
- Race, ethnicity, or national origin
- Disability or medical history
- Religious or political beliefs
Questions that seek information about these characteristics, unless directly relevant to the job, may be considered discriminatory.
Why are discriminatory questions a problem?
Under Australian law, including the Fair Work Act 2009 (Cth) and various state and territory anti-discrimination laws, it is unlawful to discriminate against a person based on protected attributes. This applies to all stages of employment, including recruitment. If discriminatory questions are asked during a job interview could lead to claims of unlawful discrimination, even if the candidate is not ultimately hired.
For example, asking a candidate about their plans to have children could be seen as discriminatory on the grounds of gender or family responsibilities. Similarly, asking about a candidate’s age or medical history could lead to claims of age or disability discrimination.
How to avoid asking discriminatory questions
To minimise the risk of discrimination claims, employers should focus on asking questions that are directly related to the candidate’s ability to perform the inherent requirements of the role. Here are some practical tips:
1 – Prepare a List of Job-Related Questions
Before the interview, create a list of questions that focus on the skills, qualifications, and experience required for the role.
2 – Avoid Personal Questions
Do not ask about personal matters such as marital status, family plans, or religious beliefs unless they are directly relevant to the job.
3 – Train Interviewers
Ensure that all staff involved in the recruitment process are trained on anti-discrimination laws and understand the importance of avoiding inappropriate questions.
4 – Use Standardised Processes
Implement a structured interview process with standard questions for all candidates to ensure consistency and fairness.
5 – Seek Legal Advice
If you are unsure whether a particular question is appropriate, seek legal advice before including it in your interview process.
Consequences for employers
If a candidate believes they have been discriminated against during the recruitment process, they may lodge a complaint with the Australian Human Rights Commission (AHRC) or the relevant state or territory anti-discrimination body. If the complaint cannot be resolved through conciliation, the matter may proceed to a tribunal or court.
If an employer is found to have engaged in unlawful discrimination, they may face significant consequences, including:
- Compensation Orders
- Reputational Damage
- Legal Costs
Asking discriminatory questions during job interviews can expose your business to significant legal and reputational risks. By focusing on job-related criteria and ensuring compliance with anti-discrimination laws, you can create a fair and inclusive recruitment process that attracts the best talent while protecting your organisation from potential legal claims.
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Disclosure statement: This information is general in nature and does not take into account any individual’s or business’ specific circumstances. You should obtain independent legal advice before making any decisions based on this information. Liability limited by a scheme approved under Professional Standards Legislation.