Job interviews serve a very important function – to ensure that the candidate is the best suited for the role on offer – but there are questions considered illegal and should not be asked of a candidate.
How Can Questions Be Illegal?
Your questions of candidates should be used to identify the best person for the job and you can ask any question that directly relates to this. However, questions directed to areas of life that might not be related and could form the basis of discrimination. If they are discriminatory then they will be considered illegal and administered by ‘Anti-Discrimination NSW’.
Recruiting should be on the basis of merit and not on the basis of any potentially discriminating characteristics. Potentially discriminating questions should be avoided and include enquiries about:
- Carer’s responsibilities
- Sexuality (e.g. homosexuality, transgender status)
- Marital or domestic status
- Sex (e.g. pregnancy, breastfeeding)
You Can Ask About Personality and Other Characteristics
To some, asking about personality might seem even more personal. However, these questions are allowed provided it is not done in a manner that is demeaning. This is because many jobs are done better by people with specific experiences and ways of dealing with situations. For example, enquiries about dealing with stress, coping with high pressure environments, handling difficult customers and so on or okay. These issues can be enquired about by asking the candidate to describe a situation involving the targeted situation, such as a difficult customer how they coped with it. This type of enquiry allows the interviewer to assess how the candidate might perform in situations that you expect them to encounter in the role they are applying for. You can also present a hypothetical situation and ask how they might approach the problem as another way of exploring these issues.
If You Are Discriminatory, There Can Be Consequences
If you receive a complaint about your recruitment process being discriminatory, be aware that the consequences can be severe. It is also important to remember that if you as the business owner delegated the recruiting to another member of your staff, you would still be legally liable for any discriminatory questions they might ask.
The extent of consequences can include:
- Compensation payments. If the matter is heard by the court, compensation may be ordered to be paid by the court. If it is before the Federal court, there is no upper limit to the size of the compensation that could be ordered. If it is in a NSW court, the compensation could be as much as $100,000.
- Legal fees. Depending on the amount of compensation ordered if it gets that far, defending a claim can be expensive. It could even dwarf the size of any compensation if it becomes protracted or complicated.
- Reputational damage. Now more than ever, a company’s reputation is an important asset that should be protected. The media generally and social media especially is a powerful means of negative information about your company being disseminated to the world. This will have an impact on not only your clientele, but also your ability to attract quality candidates for positions in the future.
- Mood of your Workforce. Even if the person making the complaint was never employed, your workforce will likely hear about it and it will affect the mood of some or all of them. As a result, you may experience poorer productivity, discontent, and even increased staff turnover.
Antidiscrimination is at the core of the understanding of illegal interview questions in the recruiting process. It is well supported by law which deals with evidence of discrimination harshly and has access to potentially crippling penalties.
However, more than simply wanting to comply with the law, it is good business to avoid discrimination at all levels. The presence of discrimination will create negative impacts on the business with legal costs, reputation and perhaps most importantly, reduced workforce efficiencies. Avoiding discrimination should be avoided for the success of your business.
 Anti-Discrimination Act 1977 (NSW)
Dr Schultz spent 22 years working in psychiatry and then went on to qualify as a lawyer. He has spent 34 years helping people solve problems and the unique combination of medicine, psychiatry, law and mediation provides a unique academic and practical approach to life's challenges.