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Keeping it Legal: Interview Questions Never to Ask

Finding the right employee can sometimes be a difficult task. In the hunt for great staff, it is easy to loose sight of our legal obligations as employers under anti-discrimination legislation.

Australian and New Zealand anti-discrimination legislation bans employment-based discrimination. Equal opportunity legislation prohibits a business from asking a person to provide details that could be used to discriminate against them. Consequently inappropriate questions on application forms & in interviews can lead to accusations of discrimination.

In simple terms discrimination refers to treating a person with an identified attribute or personal characteristic less favourably than a person who does not have the attribute, or creating conditions, which indirectly discriminate against those who do not have the particular attribute. It is unlawful to discriminate against a person because of their:

Race, age, gender, marital status, physical features, industrial (union) activity, sexual orientation, disability/impairment, status as a parent or carer, political and religious belief or activity, pregnancy and potential pregnancy, personal association with a person who has any of these attributes.

People conducting interviews should only ask questions that are relevant to the skills, abilities, experience and knowledge required for the position. Examples of questions that should not be asked include, but are not limited to:

Are you gay? Are you married? How old are you? What is your date of birth?

Are you planning to have kids? Are you sexually active? Do you speak English at home? Do you live with someone? Have you ever made a WorkCover claim (AUS)? Have you ever made a work based ACC claim (NZ)? Who cares for your children while you are working? How many sick days did you take last year?

There are always times when you need to ask specific questions in order to understand if the applicant can do the job. In these situations re-phrase the question to better describe what information you need to know.

Instead of: "Do you have any children? or How many children do you have?"

Replace with: "This job requires work availability outside standard business hours. Are you able to do this?"

Instead of: "Have you ever made a WorkCover claim? or “Have you ever injured yourself at work?"

Replace with: "This job requires regular lifting of between 5-10 kg & standing on your feet for long periods. Are you able to do this?"

To ensure that potentially unlawful questions are not asked, talk to The Fiddes Group about your recruitment strategy and how to ask the right questions when interviewing.


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