When hiring managers interview a candidate for a role, there are plenty of questions they should NOT ask. Some are unhelpful (like the perennial ‘What is your greatest weakness?) and others are just silly (‘Are you more of a hunter or a gatherer?’ – yes, that was an actual question asked by a big tech company). Others are breaking the law because they are discriminatory, being irrelevant to the person’s ability to do the job. Here are some questions that may not be asked – and a couple that may – in line with federal and state anti-discrimination laws.
Employers may not discriminate on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, pregnancy, nationality, sexual orientation or trade union activity, writes Nathan Luke of law firm Stacks.
If employers may not discriminate when hiring, it stands to reason that if they were to ask questions about these matters and a candidate did not get a position, he or she could argue that asking the question was discriminatory. The Australian Human Rights commission or a state-based anti-discrimination board would consider a complaint from the candidate.
‘Even if the applicant cannot prove that the answer they gave to your question is the reason they didn’t get the job, they will still have a valid complaint on the basis that you asked the question. Insisting that you simply gave the job to another candidate who was more suitable will not help in your defence’, writes Luke.
Some attributes are plain to see and no questions need to be asked. A racist interviewer can see immediately if a candidate is of a race or background they reject. Somebody who wants to employ a strong-looking 25-year-old man can rule out others without asking questions. The law cannot entirely protect against bias, conscious or unconscious. But generally, if the answer is irrelevant to the person’s ability to do the job, don’t ask the question in any form.
DON’T ASK
How old are you?
While we are generally well aware of gender and race discrimination, age discrimination is still prevalent, with assumptions that older people have fewer tech skills and are more inflexible (tell that to Bill Gates).
Are you married? Are you gay? Do you have children?
You can’t rule a person in our out of a position because of their relationship status or family situation, so don’t ask the question. If you do, the candidate is entitled to assume you placed weight on the answer in making your decision.
Are you pregnant?
Making assumptions about a pregnant woman’s ability to do her job is not only unwise, it could be considered discrimination. Sure, it’s difficult to think you may hire a person only to have her take extended leave a few months later, but if she is a good fit for your business hiring her is worthwhile in the long run.
BUT YOU CAN ASK (OR AT LEAST, YOU CAN IN SOME CIRCUMSTANCES)
Religious organisations, including religious schools, are exempt from anti-discrimination laws in a range of defined circumstances. The discrimination must be in line with its doctrines, beliefs or principles, and must be reasonably necessary to not offend its followers. So a religious school may ask candidates about their religion and sexual orientation, for example.
It is legal to ask candidates if they smoke, and to undergo a medical check as a condition of employment. It’s isn’t strictly illegal to ask a candidate at an interview if they have a criminal record, but it’s not the best way to discover this information. Have the recruiter or HR department run a background check if necessary. In general, if the conviction is relevant to the person’s job then it is not discriminatory to ask. So a person interviewing a candidate for a position as a driver is entitled to ask about convictions for driving offences.
As with most laws, there are exceptions. When a particular attribute may be relevant to the inherent nature of the job, an interviewer may ask a question that would otherwise be discriminatory. An interviewer may ask about disability if it would affect the person’s ability to do the job, such as when filling a job that may involve danger to themself or the public. Asking about physical disability may be relevant for a job as a tree lopper or an ambulance driver, for example, but not for a call centre operator.
When interviewing candidates, the best course of action is to approach the process with an open mind and treat all candidates fairly. Becoming aware of your unconscious biases and not acting on your conscious ones is not only legally essential, it also might lead you to a star candidate you would otherwise have overlooked. There is plenty of evidence that diverse workplaces perform better, too. That, however, is the topic for another post.
