These Interview Questions Could Land You In Legal Trouble In Australia

Here are topics to avoid when interviewing new recruits. Image: Shutterstock.

If recruiters or prospective employers aren’t careful they can quickly tumble into danger zones when interviewing job candidates.

Miles Bastick, a partner at Herbert Smith Freehills, said while an employer can ask a candidate almost anything, they have to be aware of what the questions insinuates.

“You can ask someone anything you want – unless it intrudes on a ground that’s discriminatory,” he told Business Insider.

“There’s nothing you really cannot ask in general terms it’s just that there’s obvious dangers in some of the things you might ask because it might be argued that it treads on one of the areas of law that you shouldn’t tread on.

“It’s dangerous to open up the topic if it doesn’t relate to the job requirements.”

Most of the questions in the list can result in a candidate potentially asserting they have been either directly or indirectly discriminated against if they don’t land the job.

“If it can be established that you’ve done that [discriminated directly or indirectly] people can seek a remedy – and the remedies can be quite varied but can include compensation.”

Here are eight inappropriate questions you should never ask in an interview

The classic questions to avoid are around sex, family situations and sexual preference.

    How many children do you have?
    Do you plan to have children?
    Why don’t you have children?
    Are you married?
    Are you planning to get married?
    Are you gay?

For example, if you’re interviewing a female candidate and are concerned they could fall pregnant soon after taking the job and leave on maternity leave, Bastick said asking questions like “are you married?” could be deemed inappropriate.

“If you’re interviewing a female it would be very dangerous to ask questions other than in a very careful way about ‘do you plan to have kids?’ ‘Are you pregnant?’ ‘So you’re getting married, do you plan to have kids very shortly after you’re married?’ All of those are very unsubtle and no-no’s,” Bastick said.

“If a person doesn’t get the job they will be able to potentially assert one of the reasons why they didn’t get the job relates to unlawful discrimination and it’s because they think their sex in those sort of questions, was a reason why they didn’t get the job directly or indirectly.

“Indirectly might be for example they’re more likely to get pregnant compared to a male.”

Bastick said prying on family situations, age and parental responsibilities are all dangerous in an interview scenario.

“The challenge is if you traverse these areas inappropriately or even at all you run the risk that someone might assert that there was discrimination and then you’re in a position where you have to defend it,” he said.

“The way the legislation operates it’s sort of easy to make assertions that there’s been some form of discrimination, it just puts the employer in a position here it can involve a lot of effort to try and explain what really happened and prove there actually was no discrimination, particularly when you’re dealing with direct and indirect discrimination.”

The other area to stay away from is age.

    How old are you?
    What is your date of birth?

Bastick said that while asking someone how old they are could be a “friendly, non-loaded question” in context, if the candidate doesn’t land the job it is a questions which “could be turned around to say well they thought I was too young or too old to get the job”.

“This is a highly dangerous area,” he said.

“If you’re looking for a long term person and you genuinely think that’s a business need a better question would be: Where do you plan to be in five years?”


Another danger zone is asking a candidate about their religion.

“There would be few employers one hopes that would ask about religion these days,” Bastick said.

“It’s unlawful to discriminate against someone on the basis of their religion.”

But no matter what the question is, it is how you use the information that counts.

Proving that almost any line of questioning can land you into a situation where discrimination can be argued, Bastick said information which is uncovered from a discussion about hobbies and sports can be tricky if it isn’t handled correctly.

While it’s not inappropriate to ask a candidate about the sports or hobbies they’re interested in, it can uncover some information which could be flipped around in a discrimination case. For example if someone reveals they’re in the Paralympic team an employer has just discovered the candidate has some sort of disability.

“There’s a danger in going down that line of questioning because it means you’re exploring presumably what their disability is,” he said.

An employer needs to think about how they would accommodate the disability.

“In theory someone might assert that the reason they didn’t get the job is because of the disability,” he said.

Another good point is the candidate doesn’t have to answer all the questions they’re asked but a refusal to answer can be taken into consideration.

“An applicant doesn’t have to answer anything other than do you want the job,” he said.

“Obviously if you’re applying for a job you don’t have to answer all the questions put to you.

But if you don’t “that will be something taken into account”, he said.

Bastick said while asking some of these questions may not be unlawful, using the information they uncover could become a headache for a prospective employer.

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