Blog Layout

The interview questions employers can’t ask you
Dec 09, 2020

While a job interview can be nerve wracking and often intimidating, this doesn’t mean it should feel like an interrogation. In fact, when it comes to a job interview, the questions asked of you should be intended to gauge how well suited your experience, skills and values are to the role and organisation.


For this reason, there are actually certain questions that an employer or hiring manager should not be asking you because they may be considered discriminatory. And if you’ve ever felt uncomfortable during an interview, you may have been asked one of these, so it’s important to be able to spot them should they come up during the discussion.


Here, we explain which questions are acceptable, some of those that aren’t and how to respond if they do come up during a job interview.

 


What employers can ask


A job interview is designed to help employers work out whether or not you’re the most suitable candidate for a role. This means that the questions you’re asked should relate directly or indirectly to your ability to fulfil the requisites for that position, and will usually consist of behavioural, technical and cultural questions.


Technical questions will be used to determine your skills and qualifications, while behavioural interview questions consider behaviours in the past that are likely to indicate your behaviours in future performance. Cultural questions assess what is known as your “cultural fit” for the business. For example, if the business has a strong core value of “giving back” they might be looking for employees that also possess this value. Oftentimes however, it is these organisational culture focused questions that blur the line between what an employer is permitted to ask and what they are not.

 


What can’t be asked of you


Under the Equal Opportunity Act 2010, an interviewer is not allowed to request or require someone to supply information that could be used to form the basis of discrimination. This could include questions about your personal characteristics (legally known as ‘Protected Attributes’), such as your age, gender, ethnicity, religion or sexuality.


That is because these do not directly have an impact on a candidate’s ability to perform the role, which is, as previously mentioned, the main purpose of a job interview. However, it is important to note that some organisations have exemptions to specific attributes only, but most do not. For example, if you are interviewing for a teaching role at a Catholic school that requires you to teach religious education, an interviewer will be allowed to ask about your religious beliefs.


With that in mind, here are some specific questions that seem harmless enough, but can be considered discriminatory.

 

How old are you?

Though it might not seem like a loaded question, being asked how old you are in a job interview is inappropriate, as it leaves the candidate open for age-based discrimination. For example, if you disclose your age when applying for a job and are not successful because of how old you are, if you can prove that age was the reason or a contributing factor to you not getting the job, it could be deemed as age discrimination.


What is important to note however, is that some roles will specifically require an employee to be a certain age in order to be able to perform the required duties of that role. For example, the owner of a restaurant may not hire someone if they are under 18, as they will not legally be able to serve alcohol. If this is the case in the job you are applying for, an employer could instead ask: “this job requires an employee to hold a valid RSA, are you able to obtain one?'”, and this would be a perfectly acceptable question, as it directly relates to your ability to perform crucial duties of the job.



Do you have/are planning to have children?


Unfortunately, this is a question that often gets thrown into job interviews, whether it is an intentional move by an employer or simply the interviewer making ‘friendly conversation’. Whichever it is, a prospective employer should not be asking questions about whether you have children or your likelihood of having kids.


Under both the Equal Opportunity Act 2010 and the Sex Discrimination Act 1984, if you are treated less favourably or not given equal opportunity because of your family responsibilities this could be deemed as discrimination. Furthermore, if an employer is not hiring a candidate because the employer believes they may eventually request parental leave, then this would also be considered discriminatory. These legislative Acts also protect people from being treated unfavourably because they are pregnant. It is important to note that a person who is pregnant is not required to disclose their pregnancy during the hiring process, and if a candidate feels as though they are being asked leading or invasive questions regarding pregnancy, or is not being hired for reasons relating to this, then it is within their rights to claim discrimination.

 

Do you have a medical condition or mental illness?

This question is also off limits, though there is an exception in s.351 of the Fair Work Act that allows information to be requested if it’s reasonably required for a non-discriminatory purpose. For example, if you are applying for a role in a warehouse that specifically requires you to perform heavy lifting, it may be necessary for an employer to ask about any medical injuries, as these will directly impact on your ability to perform the duties required by that role. Furthermore, should you be employed in that role, your employer would have a duty of care under Occupational Health & Safety Legislation to ensure that you were safe and that the working conditions were as risk free as is ‘reasonably practicable’ while performing these tasks.

There are also roles that generally require you to undergo a pre-employment health assessment, for example jobs in the police service or defence force. This is permitted as these jobs are known to be physically taxing and even dangerous, so it is in the best interest of both the employer and employee to know you are physically safe and capable to perform the inherent requirements of the role.


However, the employer is within their rights to fully describe the duties and characteristics of the role, and ask whether there is any reason why you wouldn’t be able to fulfil the inherent requirements of the role.

 


Do you have a criminal record?


The answer to this question depends on which state you are in. For example, in Victoria there are no laws in current effect that provide relief if a person believes they have been discriminated against on the basis of a prior criminal conviction. According to the Australian Human Rights Commission Regulations 2019, an employer does not have the right to unilaterally discriminate against a prospective employee on the grounds of a criminal conviction, however this has one very important exemption. According to this published AHRC guide, the employer should not ask a job applicant a question about a criminal record based on the appearance or other characteristics of the applicant, as “this could legally expose employers to claims of discrimination on the basis of imputed criminal record, or claims of discrimination on other grounds such as race.”

However, if a job applicant chooses to self-disclose a conviction to the employer prior to or during the interview, then an employer should allow the applicant to explain their offence and the reasons why they are raising it in the interview.


In saying this, the Regulations do prescribe that discrimination can only occur on the grounds of an “irrelevant criminal record” which places a qualification on when an employer may be allowed to ‘discriminate’ against a prospective employee. Many jobs will require a criminal history check as one of the final stages prior to offering employment, however any information about a conviction that results in non-hire needs to be directly related to the job, i.e. be relevant. For example, a conviction for theft may be relevant to a job that requires the handling of money, while a conviction for drink driving is unlikely to be relevant to an office worker and their role.

 



What to do if you’re asked one of these questions


It can be uncomfortable if you are asked one of these questions during a job interview. If you feel no hesitation answering the question, then by all means do so. If you would rather not answer however, then the best course of action is to remain polite and professional. Let the interviewer know that you don’t believe that question is relevant to your ability to perform the role and steer the conversation elsewhere, into more appropriate territory.

Depending on the question and how it was asked, it could also be helpful to ask something such as, “I’m interested to know how that relates to the role. Can you tell me a little more?” as you might discover the question is actually relevant to some of the duties required of the role and is non-discriminatory. If it isn’t relevant, the employer will likely realise their misstep and move to a more relevant line of questioning.

 

To find out more about how to make the best impression at your job interview, download our Ultimate Interview Guide that’s filled with tips and advice from Bayside Group’s professional Consultants.

Will transparency help reduce the gender pay gap
19 Mar, 2024
In this article, we discuss changes to the WGEA Report following its recent update, the key learnings, and the report's long-term implications.
28 Feb, 2024
While the “Right to Disconnect” in the Closing Loopholes No.2 Bill has been a focus, the most significant change is the shakeup of the operation of casual employment.
A woman shaking hands having been successful in a job interview
27 Feb, 2024
Few people look forward to a job interview. This is why we’re introducing a series on interviews, starting with the basics.
Share by: