Questions an employer can’t ask you, even after you’re hired
When you're interviewing for a role, you're primed to answer all types of questions. Some might be tricky or hard to answer, but they should never make you feel uncomfortable. Even if you are happy sharing personal information, whether to land the job or build rapport, there are questions an employer can't legally ask you.
Here’s what you should know about which questions are off limits and what to do if you’re asked them, as an interviewee or employee.
What employers can and can’t ask
In Australia, employers legally can’t discriminate against employees who have certain protected attributes. Any questions about these traits will likely be seen as discriminatory, says Andrew Jewell, Principal at Jewell Hancock Employment Lawyers.
Both state and federal anti-discrimination legislation include these protected attributes. The Fair Work Act 2009 (Cth) specifically mentions “race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.”
Discriminatory questions won’t always be phrased in a direct way, such as asking “Are you in a same-sex relationship?” or “Do you have a disability?” They could be phrased in a conversational, less overt way, like:
- What year did you graduate from high school?
- Do you live with your husband/wife?
- What country were you born in?
- Do you go to church?
- Are you planning to have kids?
- Who did you vote for in the last election?
However, there are exceptions. Employers can ask questions about your ability to perform a role. For example, if there’s a physical element – like lifting boxes, climbing ladders or standing for long periods of time – an employer may be entitled to ask about your physical health or past injuries.
Some roles do also have age or gender restrictions. Employees at licensed venues, such as pubs and RSLs, must be over 18. Certain intimate or caring roles might need someone to be a specific gender, such as staff at a women’s refuge.
Who counts as an employer?
The questions are off limits both during the recruitment process and after you’re hired. Who counts as your employer during these times can get a little murky though.
It includes anyone who acts on behalf of the employer, says Jewell. That includes any managers or external recruiters but won’t include anyone without any authority. It also includes information asked for in applications, such as online forms or video responses.
What about nosy colleagues? Don’t worry about questions from peers if they don’t have authority. Chances are, they’re just interested in getting to know you. While some questions might seem a bit intrusive (such as asking about your plans to have kids), they’re not grounds for concern about discrimination. Most of the time, your colleagues have good intentions.
What should you do if an employer asks you a discriminatory question?
Responding to a potentially discriminatory question can be tricky, especially when you’re trying to land a role. The key is to answer politely and professionally without giving information that could be used to discriminate against you.
There are a few ways to do this. It may help to think about the underlying purpose of the question and respond to that instead. For example, if they ask if you have children, reassure them that you’re committed and can work the required hours, “I don’t have any outside commitments that would affect my performance.” If the purpose of the question isn’t clear, you could ask how it relates to the role.
You could also deflect and redirect the question or decline to answer on the basis of privacy. For example, saying “I’m not comfortable sharing that information,” or “I’d prefer not to answer personal questions.”
If you do experience discrimination as a result of being asked off-limits questions, there are avenues for formal legal action.
“If a candidate is subjected to these questions, there are claims which can be brought in the Fair Work Commission, Australian Human Rights Commission, or the state-based equal opportunity commissions,” says Jewell.
Understanding what an employer can and can’t ask helps you protect yourself in situations where you might be discriminated against. Remember, you don’t have to answer every question an interviewer or hiring manager asks If you’re ever asked a personal question in an interview, feel confident to deflect, redirect or decline. If you feel a question has led to discrimination, know there are ways to take legal action against that employer.
For more information on workplace discrimination, visit Fair Work.
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.