Are you hiring? Beware of illegal interview questions

16th Mar 2023

Job interviews are daunting – you need the job, but it seems all the power lies in the hands of the company’s interviewer. It’s their task to elicit as much information about you as possible to see if you’re right for the job. However, there are limits to what prospective employers can ask you, with some requests for information potentially being illegal.

What are illegal interview questions?

It’s important for anyone conducting job interviews to know the limits of what they can legally ask, in order to keep their business out of hot water by avoiding interview questions that breach the law.

Section 351(1) of the Fair Work Act 2009 (Cth) prohibits employers from discriminating against employees and prospective employees on the basis of race, skin colour, gender, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, whether a woman is pregnant or plans to get pregnant, religion, national extraction or social origin.

Businesses could also break the law if they treat a worker or job applicant unfairly or harass them over any of these characteristics of a relative, friend or colleague.

It could also be argued employers breach discrimination laws if they ask about trade union activity, political opinion and even criminal records. However, they can ask if you’ve ever been convicted of a crime. Most questions about you that are outside your capacity to perform the required work could fall under discrimination laws.

The questions asked during an interview should relate to the job and the candidate’s suitability for it, based on whether they have the skills and experience to perform the work. The Anti-Discrimination Act 1977 (NSW) bars requiring someone to supply information that could lead to discrimination.

So if an interviewer asks you if you are married or plan on having children, your age, your religion, what party you vote for or whether you have a physical or mental disability, these would be illegal interview questions because they fall under anti-discrimination laws.

What kinds of interview questions can employers legally ask?

There is an exception for seeking information specific to a prospective employee’s ability to perform certain tasks of the job, such as heavy lifting, or working weekends or night shifts.

The interviewer shouldn’t ask whether a candidate has a disability or a religious reason that would prevent them from doing the work. Instead, it would be lawful to ask if there is anything that would impact their ability to fulfil the job requirements.

Resources for avoiding and dealing with illegal interview questions

The website of the Australian Human Rights Commission provides information on the types of questions that may be deemed illegal and sets out ways that employers can seek relevant information regarding the applicant’s suitability for the job, without requesting discriminatory information.

The website of the Fair Work Ombudsman also has information on ‘protected attributes’ under the Fair Work Act 2009 (Cth), with examples of the types of questions and scenarios that may be considered illegal.

How to manage being asked illegal interview questions

For a job applicant who thinks they are being asked an illegal question, the best tactic is to turn it back on the interviewer and ask how that information would be relevant to your ability to do the job. For instance: ‘Is there something about the job that relates to my age/marital status/religion?’

Clearly, it isn’t easy to stand up to an interviewer who asks something you think is legally questionable. After all, you want the job. But knowing what the law says, and subtly informing the interviewer that you are aware of the legal limits of interview questions, also demonstrates you are a confident person who is not afraid to stand up for what you know is right. That just might demonstrate that you are the right person for the job.

Also, it shows that you know you could take legal action against a prospective employer if you have been discriminated against during an interview.

This is an edited version of an article first published by Stacks Law Firm

The ALA thanks Anneka Frayne for this contribution

Anneka Frayne joined Stacks Law Firm in Tamworth in 2013 and is now the director of the firm. Anneka’s main areas of practice are family law and commercial litigation. She also oversees wills, probate and conveyancing in the firm.



The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Interviews Employment Employer and employee Anneka Frayne