Say what? Navigating Unlawful Interview Questions


By Nikita Barsby, Special Counsel and Lauren Wright, Lawyer

An interview provides an employer with an opportunity to get to know prospective employees and assess their suitability for employment. Often, there are many questions an employer wants to ask a prospective employee – however care should be taken to avoid questions which can later be relied on by the interviewee to mount legal claims.

Under both federal and state legislation, it is unlawful for an employer to discriminate against a prospective employee based on a protected characteristic.[1] A protected characteristic includes race, sex, sexual orientation, age, disability, marital status, family responsibility, pregnancy, religion, ethnicity and political opinion.

Where a prospective employee considers they have been discriminated against, they may bring legal claims asserting breaches of anti-discrimination legislation, or the general protections provisions of the Fair Work Act 2009 (Cth)[2].

Discrimination occurs when a person, with a particular characteristic, is treated less favourably than another person who does not have that particular characteristic.[3]  Deciding whether to offer a prospective employee employment based on whether or not they have a protected characteristic is discriminatory and, for this reason, employers should take care to avoid questions during interviews that either are, or give the impression of being, discriminatory.

Examples of the types of questioning that should generally be avoided are:

  • Are you married?
  • Do you plan on starting a family?
  • How do you juggle work and looking after your children?
  • Are you religious? Do you attend Church on Sunday?
  • Is English your first language?
  • How old are you?
  • Have you taken sick leave in the last year?
  • Have you ever made a workers’ compensation claim?
  • Are you a member of a union?

 It is not unlawful to ask questions directly relevant to the prospective employee’s ability to perform the inherent requirement of the role.

Examples of acceptable questions include:

  • Would you be able to work from 9am to 5pm Monday to Friday?
  • Can you work on weekends? Can you work overtime and/or travel overseas?
  • Can you perform the inherent requirements of the role, with or without reasonable accommodation?
  • In this role you would be working with children, have you got working with children clearance?
  • Are you over 18 years of age?
  • Are you able to lawfully work in Australia?
  • Do you currently use illegal drugs?

There are exceptions contained in anti-discrimination legislation, including an exception rendering it lawful to discriminate on the grounds of a prospective employee’s gender where gender is a genuine occupational qualification – for example, where the duties of the position need to be performed by a person of a particular gender to preserve decency or privacy, or where the duties include the searching of clothing or bodies of persons of the relevant gender.

Careful preparation by employers ahead of interviews, including the development of interview scripts, can assist interviewers in avoiding potentially discriminatory questioning.  Questioning should focus on the prospective employee’s relevant skills and experience, and whether this enables them to meet the inherent requirements of the particular role.

Prospective employees who are concerned that questions asked during an interview are discriminatory can consider asking for clarity on the relevance of the question to the inherent requirements of the relevant role prior to answering.  Further, prospective employees should take a note of any potentially discriminatory questioning during an interview process – as this may be relied upon to mount legal claims.

MDC Legal is a specialist employment and workplace relations law firm. Our team is currently ranked as the First Tier Western Australian Employment Law Firm (Employee & Union Representation) in Doyle’s Guide to the Legal Profession 2018.  Uniquely, we assist employers, employees and unions, giving us a holistic understanding of employment law matters, and a unique insight that enables us to provide comprehensive and leading advice to our clients.  Contact us on 9288 4000 to speak with one of our lawyers.

[1] Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998(Tas); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1996 (NT); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth).

[2] Ibid; Fair Work Act 2009 (Cth) s 351.

[3] Ibid.