Questions that can discriminate include references a particular attribute of a person, which covers race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, pregnancy, nationality, sexual orientation and trade union activity.
Can an employer be guilty of discrimination for innocently asking the wrong questions of a potential employee in an interview?
'Yes' is the short answer. To ask a question about one of those attributes in a job interview may itself be discriminatory.
For example, to ask someone whether they are Muslim or homosexual in an interview is completely irrelevant to the ability of that person to do the job.
Asking that question in itself opens up an employer to a complaint of discrimination, even if that is not the reason the person did not get the job.
A complaint could be lodged with the Australian Human Rights Commission or with one of the state anti-discrimination boards. Penalties and sanctions can apply and the reputation of a company could certainly suffer.
In reality, an employer can tell much about an applicant from a visual assessment in an interview, and there is undoubtedly a lot of age, gender and racial discrimination that is very difficult to identify and prove.
Of course, applicants can also reveal attributes about their age, race, religion, family situation and so on in their CV and there is no law against that, although putting highly personal information in a CV is not well received by many employers.
There are good reasons in certain circumstances for an employer to ask detailed personal questions of job applicants. In particular, if a role is going to be highly physical or dangerous, then it is reasonable for an employer to ask about a job applicant’s physical abilities or disabilities.
If an applicant is clearly unfit for the inherent nature of that role, then an employer can legally rule that person out on those grounds, even though this is discriminatory.
What can you ask about?
There is no law in Australia that prevents an employer asking a job applicant whether he or she smokes.
Questions about the details of previous employment, resignation or termination are also valid, within reason.
One area where many employers fail is reference checks.
It is possible that if a job applicant has had a very bad relationship with a previous employer, then that employer will not be included in the applicant’s CV.
It is valid to ask the applicant if the CV includes all employment. It is also valid to make investigations with such an employer about the applicant.
However, bear in mind that the employer/employee relationship should ideally be one of mutual respect and trust.
Stringent pre-employment screening risks getting that relationship off to a rocky start and giving you a bad name as an employer.
In an interview, an employer should carry out a detailed assessment of the skills and experience that an applicant has.
A focus on those issues, rather than personal matters, is more likely to achieve a better outcome for the employer in any event.
Nathan Luke is a lawyer at Stacks Law Firm.