Illegal interview questions - what employers have no right to ask - SEEK Career Advice

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What employers have no right to ask

What employers have no right to ask

Employers use a job interview as a way to work out how suitable you are for a role and an interview is an ideal opportunity for you to discuss your skills and expertise. But what kind of questions are recruiters and hirers allowed to ask?

The questions you are asked should relate to your ability to perform the requirements of the job. “Every interview is different but you will most likely face questions around key competencies to find out if you have the skills required for the job, and also questions about your character and personality to determine if you are a good fit for the organisation,” says Jaenine Badenhorst, Senior Solicitor with Rainey Collins.

Questions that employers can’t legally ask
Questions that dig for information beyond what is relevant to the role are not acceptable. Examples of questions that legally cannot be asked are:

  • Are you married?
  • Who do you vote for?
  • How old are you?
  • What’s your current employment status?
  • What religion are you?
  • Are you pregnant or planning on starting a family?

In most cases, the questions above will be irrelevant to the role you are applying for. If an employer asks about your sexual orientation, gender identity, relationship status, religion, nationality, ethnic origin, political opinions, employment status, age or family status, then they might be discriminating against you.

However, Badenhorst says there are some exceptions where discrimination is permitted.

“You will not need to disclose your age in an interview where age is not an indicator of your ability to do a job,” she says, “but there are some limited exceptions (for instance where a person must be of a certain age to hold a manager’s license, to enter into certain premises, obtain a permit, or security clearance). An exception also applies for domestic employment in private households.”

Badenhorst notes that questions around disabilities might be illegal if they do not relate to your ability to perform the job. “Exceptions will apply if certain physical abilities are essential for the role,” she says.

Can you tell me X about your existing or previous employer?
Employees usually owe a duty of confidentiality to their existing/previous employers. “If a prospective employer asks a question which will result in your breaching your duty of confidentiality you must not answer,” says Badenhorst. “Examples include disclosing trade secrets, confidential information or intellectual property.”

Do you have ‘clean slated’ convictions?
It is an offence for an employer to require or request an individual to reveal clean slated convictions, says Badenhorst.

“The Criminal Records (Clean Slate) Act allows people to conceal convictions that did not result in a sentence of imprisonment, once they have gone seven years without any further convictions,” she says. “The law “conceals” rather than wipes the convictions, so full criminal records will still be available for police investigations, court proceedings, firearms licensing, and for sensitive types of employment, such as the care and protection of children. It is still lawful for employers to ask someone to consent to their criminal record being disclosed. But if the person has a ‘clean slate’, then no convictions will be revealed.”

What you can do if you are asked a question that you think is illegal
At certain times you may have a right to decline to answer and in other situations, a duty not to answer. Regardless of whether a question is illegal or not, when you’re eager for a role, it’s hard to refuse to answer a question. “It could be useful to ask more about how a certain question is relevant to determining your suitability for the position,” says Badenhorst. “If the interviewer cannot provide a legitimate explanation, they are likely to move on quickly.”

If you think you have been discriminated against because you declined to answer a question, Badenhorst says you could lay a complaint with the Human Rights Commission in New Zealand. “Ultimately, if you feel uncomfortable answering a question because it is discriminatory, or you are bound by confidentiality you should decline to answer,” she advises.

Success in a job interview comes down to how prepared you are, and that includes knowing the ins and outs of what employers are and are not allowed to ask you.

For more information about workplace discrimination, visit Employment New Zealand.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.