Employers should take care and remember that they must not discriminate against current or potential employees in the workplace.

For example, an employer 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.

We set out below how this affects employers and what types of questions they can legally ask potential new hires.

How Does this Affect Employers?

This legal requirement can affect employers in two ways. For example, they must be mindful of how they treat their employees throughout the course of their employment as well as throughout their job application and interview process. 

It’s common for employers to want to find our as much information about potential employees to assess whether they are suitable for the job at hand. It’s also important, however, to know the questions employers can ask and how to avoid falling foul of the law by discriminating against prospective employees. 

What Questions Can an Employer Legally Ask?

Employers should seek to ask their prospective employees questions related to the job they are offering and always avoid questions which are likely to disclose any of the protected attributes we listed above (i.e. age, disability or marital status). If an employer asks these kinds of questions, they are leaving themselves open to claims of Workplace Discrimination.

By way of example, say the job advertised is full-time and an employer needs to find out whether the applicant is available to work Monday through to Friday.

An employer should then ask, “what days are you available to work during the week and what time?” and avoid,“do you have any children or are you planning on having children soon?”

These questions are likely to disclose the family responsibilities that the applicant has or will have. It can amount to Workplace Discrimination if they then decide not to hire the applicant based on the responsibilities owed to their family.

Another example would be where the employer needs to find out whether the applicant is legally allowed to work in Australia.

The employer should ask, “do you have the right to work in Australia?” and not, “what country are you from” or “is English your first language?”

These questions are likely to disclose their nationality and possibly their race and religion as well. It can amount to Workplace Discrimination if they then decide not to hire this applicant based on the nation of origin, race and/or religious beliefs.

Intention is Key!

It is critical for employers to remember that their purpose behind every question they ask should be to determine whether the applicant is suitable for the job. This suitability should always be the deciding factor in whether the employer decides to hire them or not and employers should never base their decision on the protected attributes of the potential employee.

What Action Can Employees Take If Asked Discriminatory Questions? 

If you are an employee and attended an interview with a prospective employer who you think asked you discriminatory questions that led to you not getting the job, you have several options. Firstly, you can lodge a complaint with the Fair Work Ombudsman if you believe you have been unlawfully discriminated against, and if the interview occurred after 1 July 2009.

You can also lodge an application with the Fair Work Commission to address the issue if you think your potential employer has breached the unlawful discrimination protection provisions of the Fair Work Act 2009.

If you have any questions on how to best approach Workplace Discrimination issues, get in touch with our Employment Lawyers on 1300 544 755.

Kristine Biason

Next Steps

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