Keep your business out of hot water by avoiding these illegal interview questions. A legal expert shares her tips.

Seeking as much information as possible is a natural part of the interview process, but asking the wrong interview questions can have serious consequences for your business. When considering your approach to an interview, it is important to be aware and prepared for what classifies as an illegal interview question.

As an HR or recruitment professional, you’re often tasked with the delicate requirement of preparing the right questions to obtain as much information as you can about a candidate’s character, behaviour and skill sets to make the right hiring decisions. Knowing how to ask the right questions to get that information can be challenging, but it’s vital to understand the fine line between what’s considered invasive, unprofessional and unlawful.

The legal backdrop

Several aspects of Australian employment law make it illegal to ask particular questions.

Section 351 of the Fair Work Act 2009 (Cth) prohibits employers from discriminating against both employees and prospective employees on the basis of  the following factors: race, skin colour, gender, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, national extraction or social origin.

It’s also against the law for an employer to treat a worker or candidate unfairly or harass them because of any of these protective characteristics (as outlined above) of a relative, friend or colleague of theirs, whether an individual is an applicant or an employee.

Some States and Territories also have anti-discrimination legislation in place which protects applicants against discrimination based on trade union activity, political opinion and criminal records. Employers must be aware of and adhere to these Federal and State laws.

What are illegal interview questions?

With all this in mind, here are some examples of interview questions that you should avoid asking:

• Do you have a disability?

• Are you currently pregnant?/Are you planning on starting a family anytime soon?

• Are you religious? Do you go to church?

• How old are you?

• Is English your first language?

• Do you have any medical conditions?

• Were you born in Australia?

• Have you ever been arrested?

• Who do you vote for?

• Are you married?/Are you seeing anyone?

• Do you drink or smoke?

• What is your sexual orientation?

• Are you a member of a union?

Approaching questions correctly

When in doubt, keep this simple rule in mind: it’s not lawful to request detailed information from candidates about their personal life or attributes.

However, there are instances where a level of personal information is relevant and appropriate to a position. For example, you might need to know about a candidate’s residency status to assess their capacity to work full-time hours.

Or, as outlined in this article from Seek, if a job required heavy lifting, for example, you could enquire about someone’s physical ability to perform a role. Questions such as this do not contravene the law if this information is relevant to assessing the applicant’s ability to perform the tasks associated with the position.

Other relevant questions, even if they are seemingly personal, can also be worded in a specific way to approach a consideration or concern appropriately. Examples can include:

• Are you an Australian citizen? If not, do you have the appropriate rights to work for this position?

• Do you have a current drivers’ licence and a method of transport?

• Do you have any commitments that would prevent you from being able to travel for work?

• How would you rate your communication skills?

• Are you proficient in more than one language?

• What are some of your personal and professional goals over the next 5 years?

• What are your personal interests and what do you like to do in your spare time?

• Based on your experience and interest, what appeals to you about this position?

Despite current legislative boundaries, illegal questions still arise in the interview process in Australian workplaces on occasion. Candidates have a right to refuse to answer these questions and, if pressed, may pursue legal action through regulators as the Fair Work Commission, Fair Work Ombudsman or the Australian Human Rights Commission.

Likewise, claims of discrimination are possible for indirect lines of questioning and focus on personal attributes. These claims can still require deliberation and assessment of the approach of employers.

Carolyn Dorrian is the founder of Dorrian & Co Lawyers.