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Job interviews: Can a prospective employer really ask that?

A job interview is a chance for a prospective employer to collect as much information about a candidate as possible. However, job applicants have legal rights even before they become employees, and federal and state laws prohibit prospective employers from asking certain questions that aren’t relevant to your ability to do the job.

Here’s a look at what questions prospective employers can ask you in a job interview, and what they can’t.

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How old are you?

Generally, your age is irrelevant. This information shouldn't be requested in your interview. However, exceptions will apply where age relates to the specific role - for example, where the job requires the service of alcohol.

Do you have kids?

A prospective employer shouldn't ask whether you have children or your likelihood of having them. If you’re treated less favourably than someone else because of current or potential family responsibilities, this may constitute discrimination.

Are you married?

Discrimination based on your sexuality, marital status or gender identity is against the law in Australia, so questions about your marital status are off limits. Your marital or relationship status should be irrelevant to any job that you take or apply for.

Are you entitled to work in Australia?

It’s against the law for someone to discriminate against you because of your race or ethnicity, but employers can ask whether you’re entitled to work in Australia. Proof of this may also be required.

Do you have any medical conditions?

Questioning your health and requesting you undergo a pre-employment medical check is lawful, but employers need to be cautious.

Questions must be related to the potential health risks associated with the job or the industry, and your ability to perform the specific role. Questions outside this scope may amount to discrimination.

Why did you leave your previous place of employment?

An employer can question you about your past employment, including why you left. This can provide useful insight into whether you’re a suitable candidate for the role.

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Are you religious?

An employer cannot ask whether you follow a religion, as this generally doesn't affect your ability to complete the requirements of a job.

To be treated differently because of your religious beliefs or activities can amount to discrimination. However, there may be some exceptions for religious organisations.

Have you ever made a claim for workers compensation?

Questions about whether you’ve ever filed a claim for workers compensation may be unlawful. A prospective employer cannot discriminate against you on the basis that you’ve had a previous claim. This may be seen as implying that you still have the disability or illness that you claimed for and may amount to disability discrimination.

Do you have a criminal record?

An employer is entitled to ask if you have a criminal record. Many jobs actually require a criminal history check before offering employment.

However, there are some limits on how this information can be used. For example, in Tasmania and the Northern Territory, it’s unlawful to discriminate against an applicant because of a criminal record that isn’t relevant to their ability to carry out the requirements of the role. A drink driving offence, for example, is unlikely to be relevant to an office worker and their role.

If you think you have been refused a job because of your criminal record, the Australian Human Rights Commission can investigate the complaint.

Do you use drugs or alcohol?

Asking questions about your drug or alcohol consumption is largely inappropriate. However, it may be relevant to some jobs. For example, if the job requires long distance driving or operating heavy machinery then certain medications may affect a worker’s ability to undertake these duties and this may be relevant.

Are you a member of a union?

An employer cannot discriminate against someone based on their trade union activity or affiliation, and employers should avoid asking this question in interviews.

What to do when asked the unlawful question?

Being asked an unlawful question can be very difficult. You don’t want to ruin your chances of securing the position by blatantly asking whether a question is relevant. However, it may be a good time to indicate to your interviewer that your answer would not impair your ability to succeed in the job, and kindly put the interviewer back on track to a more relevant question.

If you believe you have been discriminated against by a prospective employer, one of Shine's experts in employment law will be able to assess your situation and show you the best way forward.

Get in touch today for more information on your rights and entitlements. 

Written by Shine Lawyers. Last modified: March 26, 2018.

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