Some interview questions cross the line — and the law. Photo: Tonodiaz.
When it comes to job interviews, most employers want to find the right person for the job — someone who can do the work, fit in with the team and bring the right skills to the table. But in trying to dig deeper, some interviewers risk overstepping legal boundaries without even realising it.
BDN Lawyers solicitor Allen Guo says many workers are afraid to pursue their rights — especially when it comes to workers’ compensation — as they fear it could hurt their future job prospects.
“People worry they’ll be labelled a troublemaker, or that their claim history might be used against them in future job applications,” he says.
That fear isn’t entirely unfounded. While the law is clear that discrimination based on age, gender, disability or injury is unlawful, some job seekers may still find themselves facing inappropriate or irrelevant questions during interviews — questions that shouldn’t be asked in the first place.
In Australia, a combination of federal and state/territory laws makes it unlawful to discriminate against someone during the hiring process.
At the federal level, these include the Disability Discrimination Act 1992, the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, and the Age Discrimination Act 2004.
In the ACT, the Discrimination Act 1991 covers similar ground and specifically makes it unlawful for employers to discriminate against someone in their job search. However, Allen notes that the law doesn’t go so far as to outline every type of question an employer can or can’t ask.
The golden rule is simple, however.
“Employers can only ask questions in a job interview that are directly relevant to the applicant’s ability to perform the role,” he says.
“If not, it could be seen as discriminatory, even if unintentionally.”
BDN Lawyers’ Allen Guo says the golden rule for employers is to only ask job interview questions relevant to the applicant’s ability to perform the role. Photo: BDN Lawyers.
Topics that are generally off-limits include age, gender or sex, race, religion, disabilities or previous injuries. Exceptions may apply, but they must be clearly stated.
“If you’re hiring a bartender, you’re allowed to ask whether the applicant is at least 18, because that’s a legal requirement for serving alcohol. If you’re hiring someone to do heavy physical labour, you may ask if they’ve had injuries that would prevent them from safely doing the work,” Allen explains.
“Gender or sex is irrelevant in almost every job, though there may be rare biologically specific exceptions in some sport or gender-specific roles.”
But there’s a big difference between asking about current capabilities and probing into someone’s medical history.
For example, asking a candidate if they’ve previously made a workers’ compensation claim is not allowed, but asking about a specific injury may be permitted if it concerns the inherent requirements of the role.
“If someone’s applying for an administrative position, a past injury probably isn’t relevant. You can’t ask about past claims just because you’re curious or cautious,” Allen says.
If asked something that feels too personal or unrelated to the job, Allen says it is perfectly reasonable for job seekers to push back.
ACT job seekers who believe they may have been discriminated against can file a complaint with the Human Rights Commission, but even when the law is clear, enforcement can be murky.
“A rejected applicant may never know the real reason they didn’t get the job — and unless there’s a clear paper trail, it’s hard to prove the employer’s intentions,” Allen says.
In the ACT, discrimination is unlawful, but unless a person suffers measurable losses, they may not have grounds for a civil claim.
Still, Allen says while discrimination isn’t always actionable, it says something about the employer’s culture.
“If you’re being asked about your age, your claim history, your gender or disability — things that don’t affect your ability to do the job — that’s a red flag,” he says.
“Job interviews are a two-way selection process. As a candidate, you’re also interviewing the employer. That’s worth remembering, because a workplace that flouts the rules in recruitment may not treat employees fairly down the track either.”
For more information, visit BDN Lawyers.
