UNLAWFUL JOB INTERVIEW QUESTIONS

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Discrimination in the workplace occurs when an employer takes adverse action against an employee based on attributes such as their age, sex or race. The laws that protect employees from discrimination extend to prospective employees applying for a job. For instance, to prevent discrimination, there are certain questions that are unlawful for an employer, or representative of an employer, to ask during a job interview.

Job interviews are for employers to work out how suitable an applicant is for the role. The questions asked should be focused on the applicant’s ability to perform the tasks of the role. It is not acceptable to ask questions that seek information which goes beyond what is relevant to the job.

Section 124 of the Anti-Discrimination Act (Qld) states:

“A person must not ask another person, either orally or in writing, to supply information on  which unlawful discrimination might be based.”

Examples of such unlawful questions include:

  • How old are you?
  • Do you plan on starting a family?
  • Are you in a same-sex relationship?
  • What’s your ethnic background?
  • Do you go to church?
  • Who do you vote for?
  • Do you have a disability?

These questions are unlawful because they require the interviewee to supply information on their protected attributes which could be used to form the basis of discrimination, and the information would not be necessary to an employee’s ability to perform the job. (See the table below for a list of protected attributes).

An exception to this law is when the information is necessary or reasonably required for non-discriminatory purposes. An example is provided in the Anti-Discrimination Act (Qld) as follows:

“An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.”

Note: Laws that protect employees from discrimination in the workplace are covered nationwide by the Fair Work Act (Cth), and each state has equivalent anti-discrimination laws.

Attributes protected under state law: Attributes protected under federal law:
  • Sex
  • Relationship status
  • Pregnancy
  • Parental status
  • Breastfeeding
  • Age
  • Race
  • Impairment
  • Religious belief or religious activity
  • Political belief or activity
  • Trade union activity
  • Lawful sexual activity
  • Gender identity
  • Sexuality
  • Family responsibilities
  • Association with, or relation to, a person identified on the basis of any of the above attributes
  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction
  • Social origin

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Shanya Sahay is a Solicitor at Stephens & Tozer, undertaking work across an extensive range of legal practice areas including employment law. If you want more information on your rights in the workplace or during pre-work arrangements, contact a Solicitor at Stephens & Tozer today.

16 September 2019

Category: All / Commercial / Employment Law