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. In Victoria, physical features are listed as an additional protected characteristic, which includes a person’s height, weight, size or other bodily features.2 Australia has also declared criminal record as a ground of discrimination.3
Discrimination occurs when a person, with a particular characteristic, is treated less favourably than another person who does not have that particular characteristic. 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.
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 2009.4 Defending legal claims can be costly, time-consuming and potentially damaging to the reputation and integrity of a business.
What not to ask
Examples of the types of questioning that should generally be avoided are:
- Are you married?
- Are you in a same-sex relationship?
- Are you pregnant?
- Do you plan on starting a family?
- How do you juggle work and looking after your children?
- Are you the carer of any family members?
- Are you religious? Do you attend Church on Sunday?
- What is your ethnic background?
- Is English your first language?
- How old are you?
- Who do you vote for?
- Have you taken sick leave in the last year?
- Have you ever made a workers’ compensation claim?
- Do you suffer from a mental illness?
- Are you a member of a union?
Case study: Discrimination on the basis of criminal record
Earlier this year, a prospective employee pursued a discrimination claim asserting the prospective employer had discriminated against him on the basis of his criminal record.5
Mr BE applied for a consultancy role at Suncorp and was selected to attend both an assessment centre and a group interview. Mr BE was successful in the interview process and received a conditional offer of employment upon a satisfactory background check which included his criminal record. Mr BE’s criminal record identified three convictions for accessing and possession of child pornography and a failure to comply with subsequently imposed reporting obligations.
When first applying for the position, Mr BE did not disclose the extent and severity of his criminal record. However, prior to participating in the interview and receiving the conditional offer of employment, Mr BE did disclose his criminal history.
Upon receiving Mr BE’s background check, Suncorp notified Mr BE that his offer of employment had been rescinded. Mr BE made a discrimination claim in the Australian Human Rights Commission arguing that Suncorp had discriminated against him on the basis of his criminal record.
Suncorp argued that its decision not to make an unconditional offer of employment was due to concerns that Mr BE would not be able to undertake the inherent requirements of the position, particularly the requirements of ‘respect, fairness, caring, trust… and empathy’ set out in the position description. Suncorp considered that Mr BE could not fulfil the role that would involve dealing with confidential customer information, working from home unsupervised on the internet, and promoting Suncorp’s corporate responsibility.
The Commission found that an inherent requirement of a role is something that is ‘essential feature’ or ‘defining characteristic’. Good character can form part of the inherent requirements of a role, but a criminal record cannot be a basis upon which to impute bad character. President Croucher found that Mr BE’s criminal history did not ‘give rise to any legitimate inferences about his trustworthiness’ and that Suncorp discriminated against Mr BE on the basis of his criminal record. As such, it was recommended that Suncorp pay $2,500 to Mr BE in compensation for hurt, humiliation and distress and to reassess its anti-discrimination policies and procedures.
Careful preparation by employers ahead of interviews, including the development of interview scripts, can assist interviewers in avoiding potentially discriminatory questioning.
What an interviewer may ask
It is not unlawful to ask questions directly relevant to the prospective employee’s ability to perform the inherent requirement of the role. It is important for the employer and interviewer to be clear on the specific inherent requirements of the advertised position. The inherent requirements will differ from role to role and what is acceptable to ask in one situation may be potentially discriminatory in other contexts.
Examples of acceptable questions may 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?
- The role involved lifting heavy items. Can you lift items up to 25kg?
- 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 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.
To minimise the risk of discrimination claims, employers should do the following.
- Regularly review their recruitment process.
- Ensure they have current and compliant anti-discrimination policies and procedures in place
- Conduct regular anti-discrimination recruitment training — including frequent refresher training.
- Be clear on the inherent requirements of advertised roles and create position descriptions for easy reference.
- Pre-prepare interview questions and an interview script which focuses on ascertaining a prospective employees’ qualifications, skills and ability to meet the inherent requirements of the role.