Crossing the Line: 10 Illegal Interview Questions

The job interview is a critical step in the employee selection process.

Candidates want to come off looking their best, while employers want to find the best fit for their organisation based on candidates’ skills, experience and attributes.

While interviewers usually have the best intentions, sometimes inexperience or human curiosity can get in the way – and a line can be crossed.

Below we’ve outlined 10 commonly asked interview questions that cross that line and may constitute a breach of fair work, human rights and/or anti-discrimination laws.

  1. How old are you?

Most people know this question is illegal, but it’s surprising how often it’s asked! Rather than focusing on age, or how long the candidate has been in the workforce, the interviewer/s should focus on their experience.

The exception? When you’re concerned that a candidate may not meet the legal minimum working age, you do have the right to ask them whether they meet this age, which varies between states. Refer to the Fair Work Ombudsman’s site for more information.

  1. What is your sex?

Again, this question is illegal, however you are able to ask the interviewee for their preferred title.

  1. Are you married?

Asking a candidate questions about their marital and/or relationship status or sexual orientation is irrelevant and best avoided at all costs during an interview.

  1. Do you have children? Are you planning to have children or are you pregnant?

While you can’t ask an interviewee whether or not they have children or for their pregnancy status – or discriminate on these grounds – you can set out the job requirements, including working hours, expected travel and overtime – and ask whether there’s anything that might affect their ability to meet these requirements.

  1. What is your race/nationality?

Questions regarding race have no place in an interview. Similarly, you shouldn’t ask whether English is a candidate’s first language. You are, however, entitled to ask whether they have a legal right to work in Australia – and whether they are an Australian citizen or visa holder. You can also require proof.

  1. What are your religious beliefs?

Questions about religion – whether it be the religion someone practices, or their views on religion more generally – they have no place in an interview.

  1. How’s your health? Do you have a disability? Do you have a mental health condition?

However well-meaning, as a general rule questions regarding a person’s health, including their disability status and mental health, should not be asked in an interview.

There are some exceptions to this. According to employment lawyer Sara McRostie from Minter Ellison, where questions about a candidate’s health are related to the potential health risks associated with the job they have applied for, health questions are lawful and, role-dependent, so too is asking applicants to undertake a pre-employment medical check.

The interviewer should instead talk to the job requirements, which might include physical work, such as heavy lifting or operating machinery, and ask the candidate whether there is anything that might affect their ability to meet these requirements. Where the employee does disclose a disability or health issue, you could follow up with a question about modifications that could be made to their work space to assist them to perform the role.

  1. Have you been arrested?

An interview question regarding someone’s criminal history should never be framed in this way. Although many jobs require a criminal record check, the Australian Human Rights Commission advises that “employers should only ask about a criminal record where there is a connection between the inherent requirements of a particular job and a criminal record”. Examples include roles in child care, teaching and finance.

  1. What’s your credit history?

Much like questions about a person’s criminal history, there are only particular circumstances where requesting a candidate’s credit check would be lawful. Such circumstances might include where their credit history is relevant to the job, such as a role in accounting or financial administration. The applicant’s consent is always required before conducting a credit check.

  1. Do you belong to the union?

Questions around union or political memberships should also be avoided, since they are similarly intrusive and could lead to unconscious bias and discrimination.

As a general rule, remember that personal or intrusive questions are best avoided – and could see you crossing the line as an interviewer.

Instead, think of the interview as an opportunity to sell the vacancy and your organisation to the potential future employee. Stay focused on an applicant’s level of competence and ability to fulfil the role’s requirements so you get the best candidate for the job. Happy interviewing!

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