Say what? Navigating unlawful interview questions

  • Employers need to carefully consider the questions they ask during an interview.
  • Discriminatory (or apparently discriminatory) questioning during interviews creates the risk of prospective employees bringing legal claims.
  • Preparing interview questions and scripts that are focused on the position description and inherent requirements of the role will reduce this risk.

People sitting on chairs waiting for interview

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

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