As an employer, you should note that unlawful discrimination can apply at all stages of employment. Hence, you should take care when posing questions to current or potential employees in the workplace. Additionally, you cannot discriminate against a person or group of people when advertising job vacancies and arranging interviews. In this article, we outline suitable questions for potential employees.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Discriminatory Questions
When preparing interview questions, you should not seek unnecessary and potentially discriminatory information from applicants. Further, it would help if you based decisions concerning recruitment on merit. For example, asking applicants questions about their marital status that does not relate to their ability to do the job could fall under discrimination. This may be the case, especially if this information will impact your decision not to offer the applicant the job.
More broadly, you cannot treat a person adversely based on any of the following factors:
- race;
- skin colour;
- gender;
- sexual preference;
- age;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities
- pregnancy;
- religion;
- political opinion;
- national extraction; or
- social origin.
If you discriminate against a potential employee, they may be able to complain to the Fair Work Commission. Consequently, you may be liable to penalties and compensate the person you discriminated against. For this reason, you should avoid discriminatory questions.
Avoiding Discriminatory Questions
It is common for employers to want to find out as much information about potential employees as possible. After all, you will want to assess whether they are suitable for the job. However, it is also essential to understand which questions you can ask prospective employees.
What Are Inherent Requirements?
If you believe a job will be demanding, you should word questions in a way that asks whether the applicant can complete the inherent requirements. For example, you should ask questions about their ability to travel interstate, as opposed to asking personal questions about their age or physical ability.
Additionally, you may need to ask an applicant with a disability for further information about the disability to determine whether they can perform the inherent requirements of the job. This can also help you assess any potential health and safety risks in the workplace and identify any adjustments to the workplace that may be required. Additionally, this might also extend to pregnant applicants.
If someone cannot satisfy the “inherent requirements” of a job, you may have grounds to disregard their application. However, there is usually some requirement to assess the capacity of the individual to perform the so-called inherent requirements. That is to say, you might place the applicant on probation to assess whether they can complete the inherent requirements of the job. If not, you might make reasonable adjustments to ensure the job suits your and your potential employee’s needs.
Genuine Occupational Qualifications
Similar to the “inherent requirement” exception, asking questions regarding genuine occupational qualifications can be permissible.
However, some laws do not contain exceptions for genuine occupational qualifications, such as the Racial Discrimination Act 1975. Additionally, establishing a genuine occupational requirement under anti-discrimination law can be challenging. For this reason, you should carefully consider whether you can adapt particular job requirements to the needs of the applicants and yourself.
Continue reading this article below the formKey Takeaways
When interviewing potential employees for a job position, you must not unlawfully discriminate against them. Questions that do not relate to the inherent requirements of a job can be considered unlawful discrimination. This includes questions that relate to their:
- race;
- sex; or
- gender.
As such, you can be liable to pay penalties and compensate the applicant when they complain to the Fair Work Commission. For this reason, it is essential that you carefully consider the job’s particular requirements and the most relevant questions to ask.
If you are unsure what questions to ask potential employees, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Unlawful discrimination can occur when you treat a person or a group of people less favourably than others because of their background or specific personal characteristics.
You should not seek unnecessary and potentially discriminatory information from applicants during an interview. Instead, you should ask questions that assess whether the applicant can complete the inherent requirements of the job.
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