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The illegal interview questions employers can’t ask you
Interviews2 min read

The illegal interview questions employers can’t ask you

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Before you head to an interview, it’s important to be aware of the questions that recruiters and employers shouldn’t be asking you.

Employers use job interviews as a way to work out how suitable you are for a role – and the interview is an ideal opportunity to discuss your skills and expertise.

But there are limits to what employers can ask you about. Here’s what you need to know.

What do employers have the right to ask?

A job interview is designed to help employers work out whether or not you’re the most suitable person for a role. This means that the questions you’re asked should relate directly or indirectly to your ability to perform the role, says Trent Hancock, Principal of Jewell Hancock Employment Lawyers.

“While questions about certain personality traits that may be relevant to the role are permissible, for example, ‘How do you deal with stressful situations at work?’, questions about irrelevant personal attributes are not, for example, ‘Do you suffer from any mental health issues?’,” Hancock says.

It all comes back to what information they’re seeking and why, he explains. “The distinction lies in the motive behind the question being asked and the relevance of the information the interviewer is trying to obtain.”

Questions that employers can’t legally ask

Under the Equal Opportunity Act, a person mustn’t request or require someone to supply information that could be used to form the basis of discrimination, Hancock says.

“This means that employers cannot ask questions about a candidate’s personal attributes if they are irrelevant to the role being applied for.”

A personal attribute includes questions about your age, gender, ethnicity or sexuality. “The reason you cannot be asked to supply information about these attributes is because usually they have no bearing on your ability to perform the role,” Hancock adds.

This means that most questions about irrelevant personal attributes are off limits. For example, the following questions will usually be unlawful in most interviews:

  • Are you in a same-sex relationship?
  • How old are you?
  • What’s your ethnic background?
  • What religion are you?
  • Are you pregnant or planning to start a family?
  • Who do you vote for?
  • Do you have a physical or mental disability?

“In most cases, the answer to these questions will not shed any light whatsoever on your ability to actually do the job,” Hancock says. “Therefore, the questions could be used to discriminate against you."

Hancock adds that it’s also unlawful under Fair Work Act 2009 for an employer to use information obtained in an interview process to then discriminate against you on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

“The right not to be discriminated against doesn’t just apply to existing employees,” he says. “It also extends to “prospective employees” such as job candidates and ensures that they are not denied job opportunities for discriminatory reasons.”

Are there exceptions?

There is an exception in the Fair Work Act, which allows information to be requested if it’s reasonably required for a non-discriminatory purpose.

“For example, if a person was applying for a role at a warehouse that required heavy lifting, it would be lawful for the employer to ask about any physical disability that might impact your ability to perform that heavy lifting,” Hancock says.

“In this scenario, the question about the personal attribute goes directly to your ability to perform the role and is therefore acceptable.”

What you can do if you’re asked a question that you think is unlawful

Even when a question seems off limits to you, when you’re eager for the role it can feel difficult to refuse to give an answer.

Responding in a way that redirects the conversation may help. “If an interviewer steps out of line and asks a question that is potentially unlawful, politely respond that you do not believe that the answer is relevant to your ability to perform the role,” Hancock says. Depending on how the question was asked, this might be as simple as saying, ‘I’m interested to know how that relates to the role. Can you tell me a little more?

“Ideally, this response will cause the interviewer to realise their misstep and withdraw the question. You can also use it as an opportunity to pivot the conversation towards the strengths that you do have that are actually relevant to the role”.

By sensitively responding to what you think is an unlawful question, it may also encourage the interviewer to explain why they think the question is relevant to the role. It may be that the question is required for a non-discriminatory reason.

But remember, whether you’re an employee or potential employee, you don’t have to answer a question that requires you to supply information that could be used to discriminate.

Hancock says you should stand firm if you’re asked unlawful questions, and know that you can take legal action against a prospective employer if you’ve been discriminated against during an interview process.

Ultimately, what an employer asks you in an interview should relate to the job and how suitable you are for it. It can be uncomfortable to refuse or avoid a question, but knowing what’s off limits and having a simple response at the ready can help you to feel more confident and in control.

For more information on workplace discrimination, visit Fair Work.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.

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