Illegal Interview Questions

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Job interviews can be nerve-wracking enough without being asked a personal question which puts you on the spot, but did you know that sometimes the questions may not just feel a bit personal, it could actually be illegal?

In Australia, an interviewer has a responsibility to only ask questions that assess your compatibility for the role and the organisation, and they should not judge you on aspects of your personal life which do not relate to the role in question.

Here is what you need to know about illegal interview questions, how to listen out for them and what to do if they arise.

What are illegal interview questions and why are they illegal?

The Fair Work Act 2009 deals with illegal interview questions and sets out the attributes which employers are prohibited from discriminating against whether they are recruiting, onboarding or working with existing employees. These are:

  • race;
  • skin colour;
  • nationality;
  • gender;
  • sexual orientation;
  • age;
  • disability (physical and mental);
  • marital status;
  • carer status;
  • pregnancy (both current and future);
  • religion;
  • nationality; and
  • social class.

It is crucial that anyone who is part of the interview process understands that initiating these topics could give rise to a discrimination claim if the candidate feels their response was used as the basis to pass them over for the job.

Employers and fellow employees alike should be made aware that they could be breaking the law if they treat one of their colleagues or potential colleagues unfairly throughout the recruitment process or if they harass them because of any of the aforementioned characteristics.

The types of questions which should be avoided in an interview include asking the candidate if they are married or planning to have children, how old they are or if they are living with any illness or disabilities.

In addition, although it is legal for candidates to be questioned about whether they’ve ever been convicted of a crime, candidates cannot be asked about any trade union activity or political opinions.

What kinds of questions can an interviewer legally ask a candidate?

Interviewers should try to ask questions which relate only to the candidate’s capacity and suitability to perform the job they are being interviewed for. To this end, it is safe to ask questions which pertain to previous experience, relevant skills and interest in the job.

Interviewers may also seek information which may be relevant to the job in a specific way. For example, if the role may not be suitable for someone with a physical disability because it involves lifting heavy objects, the candidate may be asked if there is anything which may impede on their ability to undertake the tasks required, but they should not be asked if they have a disability that would prevent them from doing the job.

Useful resources for interviewers and recruiters

For further information on the types of questions which may be considered illegal to ask during an interview, recruiters and people managers can refer to the Australian Human Rights Commission. The Fair Work Ombudsman provides information on protected attributes under the Fair Work Act, including specific examples of discriminatory questions.

What should you do if you are asked an illegal question during an interview?

If you are asked an illegal question during a job interview you should try to pause before subtly acknowledging its illegality with the interviewer. Rather than answering the question, ask one of the interviewers for clarification on why it may be relevant to the job. For example, if you are asked about your age or whether you have children, ask the interviewer if your age or family life is relevant to fulfilling the requirements of the job. This tactic gives the interviewer the opportunity to realise what they have done and rectify the situation in a way which allows you to remain professional and confident and to assert your knowledge of illegal interview questions.