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Are you guilty of asking these common illegal interview questions?

by Sirius People

Illegal Interview Questions
Estimated Reading Time: minutes

Let’s get the obvious out of the way: The purpose of a job interview is to help you identify whether the candidate has the behaviours, skills and experience necessary for your business needs.

It gives you the opportunity to ask questions about the candidate’s performance ability. And given that people have personalities (a concept!), asking questions about how they would go about certain situations is important.

But, sometimes innocent questions that can come up naturally in conversation can actually be perceived as discriminatory, leaving your business open to negative employer branding or even lawsuits.

The basic rule of thumb is: If it doesn’t directly pertain to the role, don’t ask about it.

Instead, try to think of the skills and traits you need from an employee to determine what questions to ask.

You can get to know them on a personal level once they’ve been hired. Until then, keep it professional.

We’ve put together common interview questions that are actually illegal — and what you can ask to get the answer you need:

 

Common Interview Questions That Are Actually Illegal

 

Age

There are very few reasons to ask about a person’s age during a job interview — most of which pertain to the sale of 18+ products, such as alcohol or tobacco — but that doesn’t mean that we don’t sometimes make assumptions about others based on how old they appear to be.

For younger-looking candidates, it may be presumed that they are inexperienced. For female candidates ‘of a certain age,’ it might be presumed that they want to settle down and have kids. For older-looking candidates, it may be presumed that they plan to retire soon or are more susceptible to illness/injury.

Here are some questions to avoid:

How old are you?

When did you graduate from high school?

There’s a large age gap between you and your coworkers. Is that a problem for you?

How long do you plan to work until you retire?

Have you experienced any serious illnesses in the past year?

If confirming a person’s age is required for legal reasons (i.e. working at a pub as a waiter), ask to see their driver’s license or passport.

 

Relationship status

Whether a person is in a committed relationship or is married has no impact whatsoever on their ability to do their job.

It could be perceived that the interviewer is flirting with the candidate, trying to find out if a person’s part of the LGBTQ+ community, or make presumptions about the candidate’s personal life.

So, keep any questions about a candidate’s relationship status off the table — Even if they’ve mentioned their partner in passing. You can learn more about their personal lives once they’re working for you.

 

Parental status

Much like relationship status, whether or not a person has kids will also have no impact on their ability to do their job. They may need a certain level of flexibility, but those are questions that can be tailored.

For instance, don’t ask:

Are you pregnant?

Are you trying to have a family?

Instead, ask:

How long do you plan on staying with us?

Do you have any leave planned?

Or, describe the job and ask if they can perform all the functions.

Don’t ask:

How many kids do you have?

Who takes care of your kids while you’re at work?

How old are your children?

What does your husband/wife do for a living?

Instead, ask:

Do you have any commitments that might prevent you from working the assigned shifts?

Be sure to ask all candidates about this, not just women, otherwise, it will be seen as discriminatory.

 

Gender identity & sexual orientation

As mentioned in the relationship status section above, there is no reason to ask about a person’s sexual orientation during a job interview. A person’s preferences do not affect their job. The same can be said about their gender identity.

However, there is a case to learn a person’s gender identity after an interview during reference checks so you don’t misgender them to your (and potentially their future) colleagues.

The best way to do this: listen to what pronouns their referee uses (i.e. she/her, he/him, they/their, etc.). If you must ask what pronouns the person uses, start by identifying your own. For example, “I’m Jamie and I use she/her pronouns. What about you?”

Then, when you communicate with their team members or management, everyone knows what pronouns to use for the individual and to respect those pronouns.

Pronouns are the ONLY appropriate question when it comes to gender identity.

Don’t ask:

But were you born male/female?

Have you had surgery yet? (Or ask if they’re pre- or post-op.)

Are you taking hormones?

Are you trans? (Or any variation of past terms for transgender.)

What’s your ‘real’ name?

Or if someone asks you to use certain pronouns for them, don’t question it, even if it doesn’t make sense to you or if they don’t “look” like it.

If you do accidentally misgender a coworker, apologise, correct yourself and move on.

For more information on how to best support trans people in your office, click here.

 

Nationality

What country a person comes from does not impact their ability to do a job, if they have similar experience. Chances are, their CV will give you hints as to where they’re from or they will volunteer that information.

Asking about a person’s nationality can be perceived as discrimination or racism, so it’s best to avoid all questions pertaining to what country a person is from. Do not directly ask them where they’re from — it has no bearing on their skills.

However, their nationality may impact their work rights. If you suspect someone may not have full work rights, you may ask:

Do you have full working rights in Australia?

Or, do you have any work restrictions in Australia?

You may also request their passport if you’re seriously considering hiring them to conduct a visa check.

Don’t ask:

Are you an Australian citizen? (Unless it is a government role and requires citizenship as part of security clearance)

What country are your parents from?

What is your background?

Where did you live while you were growing up?

Can you provide a birth certificate?

How did you learn English?

How did you learn [insert foreign language]? (This is permissible if it is a job requirement, such as a translator, [foreign language]-speaking phone operator, etc.)

Again, you can get to know them as a person once you’ve hired them. Keep it out of the interview process.

 

Religion

A person’s religion does not indicate if a person is qualified for a role in a secular workplace. Therefore, there’s no place in an interview to ask them about their religious beliefs.

The only exception to this would be for roles such as a Catholic school teacher, where a particular religion is built into a workplace and is therefore not a secular workplace.

Asking about a person’s religion can be perceived as discriminatory, and it’s best to not ask about religion during the interview process. For all roles in secular sectors, don’t ask:

What denomination are you?

Who is your pastor?

How many times per day do you need to pray?

Do you have any religious holidays that you celebrate?

 

Arrest Record

Legally, an employer can’t ask you about your arrest record, but they can ask you, “Have you ever been convicted of a crime?” if it substantially relates to your job.

This includes any role that is security-sensitive, such as roles that deal with large sums of money, include unsupervised work, or work with vulnerable populations. For example, a candidate who has been convicted of theft probably wouldn’t make a good hire as a bank teller.

Don’t ask:

Have you ever been arrested?

Do you have a criminal record?

Have you ever been convicted of a crime?

 

Race

A person’s skin colour or cultural background has nothing to do with their ability to perform in their role. Never ask any questions about their ethnic background. It’s illegal to discriminate based on race.

 

Finances

A person’s personal finances or whether they own property also has nothing to do with their ability to perform their job or their character. Running a credit check is a legal part of recruitment, but only when it’s relevant to the job and the applicant has signed off on it. Otherwise, keep it off the interview table.

Don’t ask:

Have you ever been bankrupt?

Do you own a car?

Do you rent or own your apartment?

Do you have any outstanding loans?

How much mortgage do you have left?

 

Politics

Politics is another area that should be left alone during the interview process, again, because a person’s political views do not indicate whether a person is qualified for the role. It’s also not an indication of their character or how they will act in the workplace.

Don’t ask:

Who did you vote for?

How do you feel about the marriage equality act that passed last year?

 

Ability

It’s illegal to discriminate based on a person’s disability. So, only ask about people’s abilities if it directly pertains to the role — and be specific about it.

Don’t ask:

Do you have any disabilities that will prevent you from being able to fulfil these requirements during your job interview?

How did you end up in a wheelchair?

What happened to your foot? (If a candidate is limping.)

What’s your medical history?

Instead, ask:

Are you able to stand for 4-8 hour shifts?

Are you able to lift up to 10 kilos?

Keep in mind that not all disabilities are visible. For instance, 96 per cent of people with chronic pain don’t use mobility devices, however, 25 per cent of them have some type of limited activity range.

They may also have ulcerative colitis and require an ileostomy bag; they may have multiple sclerosis; they may be autistic; they may be deaf in one ear — None of which is visible.

But, as long as a person’s disability doesn’t interfere with the specifics required for the role, there’s no reason not to consider them for a role at your company.


This may seem like a lot to consider as an interviewer, it’s not as difficult as it appears. A good rule of thumb is when you’re preparing for your interview with a candidate, narrow down what qualities and skills the role requires and build questions around that.

If a candidate mentions something in one of the aforementioned categories in passing in an answer, don’t dwell on it. Stick to what the role requires and their professional abilities. You can get to know them on a personal level once you’ve hired them.

This level of interview care should also be something to ask your recruitment partner about if you decide to work with an agency. We are in a candidate-short market. So, if a candidate feels like they didn’t have a good experience with your company during the interview process, they have other options to fall back on and they may spread the word that they weren’t treated fairly during the interview.

To keep your employer branding in tact, be sure to ask your recruitment partner about what interview questions they screen candidates with or ask if they’re APSCo-recognised.

The Association of Professional Staffing Companies (APSCo) offers risk and compliance checks for all its members so you can rest assured that any APSCo accredited business has annually undergone thorough screening on a business and individual recruitment consultant level. As the membership body is dedicated to professional recruitment, they also provide members with, and help shape, the latest regulations and legislation impacting the recruitment process.

We are proud to say that our management team are APSCO-recognised and we are working toward having our recruitment consultants and business APSCo-recognised by the end of the year to ensure the best ethical service for our clients.

For more tips on what to look for in an interview, be sure to check out our posts on how to be a better interviewer and the importance of hiring for ‘culture contributor’ and not ‘culture fit.’

 

2020 11 17

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