24 September 2015
The job interview is the age old process of getting to know a potential employee in order to judge whether they would be a suitable fit for the role for which they have applied and for your organisation more generally.
Job interviews are a potential minefield from a legal risk perspective. Interviewers need to find out pertinent information about the candidate that could affect their ability to perform the job. But interviewers often stray into questions or comments on matters not linked to the ability to perform the job. The danger with such questioning is that it can be perceived as showing a form of bias, and could lead to an unsuccessful candidate bringing, amongst other potential actions, a discrimination or adverse action claim.
Here are five types of questions that we recommend interviewers avoid asking during a job interview – even if the intention in asking the question is purely conversational.
1. “How old are you?”
The potential for an age discrimination claim arises irrespective of where a candidate falls on the age spectrum – whether it is a school leaver looking for their first job or more mature worker looking to extend their working life. It is the qualifications and experience of the candidate relative to the inherent requirements of the role that are relevant, not their age.
2. “Are you pregnant?”/“Do you plan to start a family shortly?”/“Do you have any children?
No matter why you may ask this this type of question, it could be construed as potentially discriminatory based on grounds such as pregnancy and carer’s or family responsibilities.Under sex discrimination legislation it is unlawful to ask a woman during a job interview whether she is pregnant or intends to become pregnant if that information is requested in connection with determining whether to offer her employment. If you are seeking to determine whether a candidate’s actual or potential commitments outside of work may impact on their ability to perform a role, it is better to frame it instead by saying: “This role will, from time-to-time, require late nights at the office, weekend work or travel interstate or overseas. Would you have any difficulty meeting this requirement?”
3. “Do you have any health problems?”
Asking such a vague question that focuses on the applicant’s personal attributes could potentially lead to a discrimination claim on the ground of disability/impairment. The real purpose of this question is (or should be) to determine whether the applicant can perform the inherent requirements of the job, and what reasonable adjustments might enable the person to meet those requirements. Instead, the interview should ask something along the lines of: “This position involves some heavy lifting. Would you have any trouble performing this type of work?”
4. “Are you married?” or “Do you have a partner?”
Where there is no link that can be reasonably drawn between the answer to these questions and a requirement of a job, these questions should not be asked. Marital or domestic status is a protected ground of discrimination, and such questions may also give rise to discrimination claims on the basis of sexual orientation or preference.
5. “I detect a [insert country]’s accent, whereabouts are you from?”
In most circumstances, the nationality or ethnic origin of a candidate is irrelevant to their ability to perform the inherent requirements a role. As such, this question may open up the interviewer up to a claim of discrimination based on those grounds. If nationality or ethnic origin is relevant to the inherent requirements of a particular role, that is best disclosed in the advertisement for the role and must be justifiable in the circumstances.
While poorly or clumsily worded questions can lead to potential legal troubles, it is also important that those responsible for your recruitment feel comfortable in conducting interviews so your organisation has available to it all the relevant information about a candidate to inform your decision making regarding recruitment
At PCS we can work with you and your team to prepare for interviews to minimise the risks in the recruitment and selection process.