You can’t ask that! Illegal job interview questions

Interviews can be a tough go at the best of times, but throw in uncomfortable, cringey, or plain illegal questions and you’ll be in for a tumultuous ride.

We often think that we have to jump through hoops or go out of our way to prove ourselves in interviews, but you are under no obligation to answer any question that makes you uncomfortable. After all, job interviews are not just for a prospective employer to interview you, it’s also a chance for you to see if they’re the right fit.

So, what kind of things are acceptable for employers to ask? According to Seek:

“While questions about certain personality traits that may be relevant to the role are understandable, 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?’

The distinction lies in the motive behind the question being asked and the relevance of the information the interviewer is trying to obtain.”

Basically, any question that speaks to how you would perform in a specific job is open fodder for interviewers.

To find out what is unlawful to ask under national and state laws, we need to turn to the legal literature.

Legal nitty gritty

Under the Fair Work Act 2009, it unlawful for an employer to treat a current or prospective worker discriminatorily on the basis of their ‘features and attributes’. These include a person’s:

• race
• colour
• sex (including intersex or transgender peoples)
• sexual orientation
• age
• physical or mental disability
• marital status
• family or carer responsibilities
• pregnancy
• religion
• political opinion
• national extraction (eg. a person’s heritage, citizenship, or where they or their parents were born)
• social origin (eg. a person’s social class or group, language and customs).

It’s also unlawful for an employer to discriminate a current or prospective worker on the basis of their relatives’, friends’, or colleagues’ features and attributes.

It doesn’t matter if you don’t work there yet, a prospective employer does not have the right to treat you unfairly. As Seek explains:

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

Further ‘legalese’

You’re not just protected at work under the Fair Work Act. There are several more federal and state laws in place to ensure you’re treated fairly in the workplace.

Sex Discrimination Act (1984)

Discrimination on the basis of pregnancy or potential pregnancy is unlawful. Employers are not allowed to ask you about your current or future plans on pregnancy or children in an interview, or use this against you when considering your candidacy.

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013

Discrimination on the basis of sexual orientation, gender identity, intersex status, and marital or relationship status is unlawful. This means LGBTIQA+ people’s access to services and recognition of sex in official documents is protected, and discrimination, harassment, or hostility at work or study is against the law

Disability Discrimination Act 1992 – Section 15

In considering a candidate, an employer cannot discriminate against a person on the grounds of their physical or mental disability. You are not under any obligation to disclose an existing disability, one that previously existed but no longer affects you, or any condition that may exist in the future (including genetic predispositions).

Age Discrimination Act 2004 (Cth)

You cannot be discriminated against in a job because you are seen as too young or too old. There are some exceptions to this, such as jobs that require the service of alcohol or the operation of a vehicle.

Racial Discrimination Act 1975 – Section 15

A current or prospective employer cannot discriminate against you on the basis of your race, colour, or national or ethnic origin. Similarly to the Age Discrimination Act, there are some exceptions to this Act; an employer may have special dispensation to, for example, hire an Indigenous person for roles that work directly with Indigenous communities.

You can’t ask that

As we’ve covered, you should not be asked any questions in a job interview that relate to personal attributes irrelevant to the job description.

Here are some examples of unlawful and unreasonable questions:

• What’s your sexual orientation?
• How old are you?
• What’s your ethnic background?
• What’s your religion?
• Do you have a disability?
• Are you pregnant or planning to start a family?
• Who do you vote for?
• Have you ever been arrested?
• Do you drink or smoke?
• Are you a member of a union?

Sometimes these questions will be less obviously unlawful. Here are some examples of different forms these questions could take:

• How many religious holidays do you observe each year?
• Do you go to church?
• Are you seeing anyone at the moment?
• Have you ever been arrested?
• Is English your first language?
• Do you have any medical conditions?
• Were you born in Australia?

How to answer

If you’re asked any questions that you think might be discriminatory or unlawful, there are a couple of approaches you can take.

No one likes confrontation, and it’s very possible that the interviewer may not know their question is inappropriate. In this case, you could try saying something like:

‘I’m interested to know how that relates to the role. Can you tell me a little more?’

Ideally, this will nudge the interviewer towards realising their mistake and moving on.

However, if they continue to press you, you’re well within your rights to simply refuse to answer. You should never feel pressured to answer a question with information that could be used against you, or is completely irrelevant to the role.

There’s a lot to consider when heading into an interview, but the possibility of being discriminated should absolutely not be one of them.

If you have any questions about how to answer questions in interviews, or anything related to your career development, come visit us online or in person!

Or, head to our interview and video interview resources to get some handy tips to prepare.

Featured image courtesy of Pexels