‘You Can’t Ask That!’ Illegal Interview Questions You Should Avoid

Recruiting for new employees is exciting – it’s a chance to uncover fresh IT talent that will enhance your team, and propel your project to greater heights.

But preparation is key, particularly when it comes to legalities around things you can and can’t ask during interviews.

Get it right and you’ll secure a top recruit. Get it wrong and you could potentially end up in a discrimination lawsuit.

Here are some tips to ensure you remain in the former category, rather than the latter.

Topics To Avoid

Under various Australian laws (federal, state, Fair Work Act 2009 and the Equal Opportunity Act), you cannot ask a person to give you information that may be used to discriminate against them in the workplace. In this case, it’s hiring for your new position, so you can’t ask interview questions about a candidate’s:

• Race
• Colour
• Sex/gender
• Sexual orientation
• Age
• Physical or mental disability
• Marital status
• Family or carer responsibilities
• Pregnancy
• Religion
• Political opinion
• Country of origin

The reason is that none of these things are relevant to the candidate’s ability to perform your role. If they are, you may be allowed to ask them, but it must be done in a way that clearly demonstrates your motive behind the question, and the question’s relevancy to the position.

You may wonder whether there’s any real risk in asking a personal question or two. But if you do, and the candidate is not selected for the job, there’s always the chance they may feel like you’ve discriminated against them.

While it may be hard for them to prove they didn’t get the role due to discriminatory hiring practices, they have a right under the Privacy Act to request all notes made about them during the interview. This is not a road you want to travel down, so here’s some advice to help you avoid any potentially litigious questions.

Preparation Is Essential

The best way to avoid landing yourself in interview question hot water is to thoroughly prepare beforehand. The first step is ensuring that everyone on the interview panel understands what they can and can’t ask, along with the reasons behind it.

Carefully plan out your questions using your position description. They should centre on the key skills and requirements of the role. By having a set list of questions, you not only have an appropriate script for everyone to follow, but it also evens the playing field as all candidates are asked the same things.

It is ok to go off script, but keep the questions firmly focused on role requirements and the candidate’s performance (their achievements, how they dealt with situations such as team conflict or an overflowing project pipeline etc.).

A Few Specific Questions To Avoid + Safe Suggestions

Here are a few common illegal interview questions with some replacements that are more appropriate:

Marriage/Family

Avoid:

• Are you pregnant or planning on starting a family?
• Are you married?
• Do you have children?
• How do you juggle work with three children?
• Do you have any carer commitments?

Ask:

• The role may require some occasional evening or weekend work. Would this interfere with other commitments?’
• What hours are you available to work?

Religion

Avoid:

• Are you religious?
• Do you observe any religious-based holidays?

Ask:

• The role requires some weekend work. Are you able to commit to this?

Race or country of origin

Avoid:

• Where were you born?
• Where are you from originally?

Ask:

• Are you legally allowed to work in Australia?

Mental health

Avoid:

• Do you have any mental health issues?
• Have you sought support for mental health issues in the past?

Ask:

• How do you deal with stressful work situations?

What Happens If The Candidate Shares Something They Shouldn’t?

Candidates will naturally have some interview nerves and may inadvertently offer up some personal information. It might be they have young children or an elderly relative they care for. The best course of action is to directly move on to a question specifically related to the role, rather than calling attention to the fact they’ve given you potentially illegal information. While you can’t ‘unhear’ what you’ve heard, you can make a conscious effort to ensure it doesn’t impact your hiring decision.

Extra Interview Help

Candidate interviews can be tricky terrain, so we hope these interview question tips are helpful for you. But if you’d like some extra support with candidate interviews, reach out to one of our IT hiring experts. We are always here to help!

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