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Can you ask that?

Written by Lindy Alexander on September 4th, 2018.      0 comments

The purpose of a job interview is to determine whether a candidate is the most appropriate person for a particular role. The questions that hirers ask candidates should relate to their ability to perform the inherent requirements of a position. 

“Given that a person’s character traits are relevant to their ability to perform many jobs, questions that demonstrate these character traits (e.g. “Provide an example of a time you overcame a problem”) are perfectly permissible,” says Trent Hancock, Principal Lawyer at employment law firm McDonald Murholme. “However, questions that seek information beyond what is relevant to the role are not.”

In general, employers are not allowed to ask candidates to provide information about their age, gender, ethnicity or sexuality. “The reason questions relating to these factors are unlawful is for the simple fact that these factors are not relevant to an employee’s ability to perform a job,” says Hancock.

It is also unlawful to discriminate against a prospective employee on the basis of their physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. “Any questions that concern or require an answer relating to any of these factors should be avoided as it gives rise to the inference that the ultimate selection of the successful applicant will be at least in part based on an impermissible factor,” advises Hancock.

Here are four questions that are illegal or potentially discriminatory, and suggestions for what you can ask instead. 

1. How old are you?
If the request relates to the inherent requirements of a role, such as requiring proof of age to work in a licensed venue or proof of licence to drive a delivery van, then it is legitimate,” says Jaenine Badenhorst, Senior Solicitor with Rainey Collins.

However Badenhorst notes that because these documents contain information regarding the employee’s age and other protected attributes, such a request may be discriminatory. If you use a candidate’s driver’s licence to calculate their age and then subsequently use their age to discriminate against them, that’s illegal.

What to do instead:
“In order to avoid any allegation of discrimination, it is best practice for an employer to ask for such documents after an offer of employment has been made or to make any offer contingent on providing the requested documentation,” says Andrew Jewell, Principal Lawyer from McDonald Murholme. 

2. How do you juggle work and looking after your children?
This question suggests that a candidate’s family responsibilities are relevant to the decision of whether to employ them or not.

“The mere fact that someone has children, no children, plans to have children, plans to have no children, or has other dependants (like an elderly parent, or disabled relative) should not be used to discriminate against a prospective employee,” says Badenhorst.

It is illegal to discriminate against a candidate due to their family status (such as being a single parent).

What to ask instead:
“Are you able to commit to working the following hours …”

3. Are you currently working?
It is illegal to discriminate against a candidate because they are employed, unemployed, or on a benefit. However, the question could be legitimate to determine when the employee would be able to start in the role (for instance the candidate might need to give notice to an existing employer).

What to ask instead:
“When are you able to start?”

4. Have you had any past injuries/illnesses?
As this question relates to a protected attribute (disability), it is unlawful.
Depending on the circumstances, however, this question could be relevant if it is specifically aimed at asking about an illness or injury that would directly relate to the ability to perform the inherent requirements of the role.

What to ask instead:  
“Do you have any medical conditions that would mean you are unable to lift heavy items?” or “Is there any reason you might not be able to complete the duties required for this role?”

What you need to know
Employers cannot “refuse or omit to employ” a potential candidate because they are of a certain gender, sexual orientation, age, race or due to another illegal ground. But it is important to note that there are limited occasions when discrimination may be allowed if it relates to the requirements of the position.

Different treatment is sometimes legal (and necessary) to enable a particular group of people to achieve equality with others. Examples include gender quotas in the workplace or measures to reduce the discrimination or under-representation of specific ethnic or cultural groups.

However, it is unlawful for employers to discriminate against candidates on the basis of the attributes outlined above, and if you do, candidates may be able to take legal action against you.
 
2016 Lindy Alexander is a freelance writer and researcher. She has a PhD from The University of Melbourne and, being a 'solopreneur', Lindy is interested in all things business.
Topics: Business
 

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