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Have you ever been asked your age in a job interview? What about your racial origin? Your prospective employer might not have meant anything sinister by asking, but it’s important for you to know that these questions, and others like it, are not allowed.
Prospective employees are protected by law from being asked particular questions in job interviews as they can be discriminatory.
Rebecca Tisdale, a Clinical Solicitor at Deakin Law School, explains.
‘There are some things that are a definite no-no to ask in a job interview,’ Tisdale says. ‘No-one should ever ask you about your race or your union membership. It would also be incredibly inappropriate to ask about someone’s marital status or pregnancy or whether they are planning a pregnancy.’
Victoria’s anti-discrimination law, the Equal Opportunity Act, includes a long list of ‘protected attributes’ that employers aren’t allowed to ask you to assess your suitability for a job.
These include age, gender identity, disability, marital status, parental status or status as a carer, political belief or activity, pregnancy, race, religious belief or activity, and sexual orientation, among others. Recently added is a ban on asking directly about someone’s historical criminal convictions.
‘There are certainly some really clear-cut situations,’ Tisdale says. ‘For example, there was a case where a 70-year-old man applied for a job. His age really didn’t prevent him from doing the work, but the HR professional and the business contact exchanged emails about his age saying, “we’ll have to keep looking.” That is obviously discriminatory and something you can’t do.’
In many circumstances, there’s more of a ‘fine line’ as a particular attribute might be relevant to your capacity to do the job, Tisdale explains.
‘You can’t not hire someone because of their age. But, for example, a job might require someone to have a drivers’ license, and they’re not yet 18.’
Despite this, a more appropriate question would be to ask all applicants, regardless of age, whether they hold a license, rather than to focus on age.
Employers can’t refuse to hire someone because of a disability if it doesn’t impact their capacity to do the job or if they would be able to do the job with reasonable adjustments – but they might be justified in asking about this.
‘Let’s say you’re working on a production line and you have to be able to lift a certain weight repetitively throughout the day. An employer can ask, “tell us about how you can do that,” and they can also certainly ask if there is some sort of reasonable adjustment they can make for your disability,’ Tisdale explains.
The law sets out special measures for religious bodies and other employers in particular situations that can allow them to engage in what would otherwise be discriminatory behaviour.
‘There’s also a process in Victoria where an employer can go and ask for permission to do so,’ Tisdale adds.
‘Separately, the special measures provisions are designed for the purpose of realigning substantive inequality for a particular group. For example, there’s not a strong history of Aboriginal and Torres Straight Islander people being lawyers, so having a specialist program that other people can’t apply for is not seen as being discriminatory. An employer needs to be doing it in good faith to reverse substantive inequality; they can’t just do it because they’ve got a preference.’
Sometimes employers are also protected to select workers based on the sensitivities of particular clients, Tisdale explains.
‘Let’s say the employer is a women’s domestic violence shelter. It may be that they’re allowed to hire women only.’
If you’re in a job interview and feeling unsure about the line of questioning, it’s important to come back to relevance.
‘It’s quite legitimate to ask, “I’m happy to talk about that but can you help me understand why that’s relevant to the job that I’m applying for?”’ Tisdale suggests.
‘But if you feel uncomfortable and you’re being asked very directly inappropriate questions, like “Are you planning on having a family?” then you don’t have to answer, and I would also suggest you may wish to make a complaint about the conduct of the potential employer,’ Tisdale suggests.
There’s an online form on the Victorian Equal Opportunity and Human Rights Commission website that you can fill in to make a complaint. In addition to assisting you to resolve your issue, if this is a systemic issue in the industry, it might spark the VEOHRC to conduct an investigation.
‘If you feel you’ve been denied a job after that sort of discussion, the Equal Opportunity Commission can hold a conciliation; an opportunity for you and the potential employer to sit down and you might get an apology,’ Tisdale explains.
‘I think the more that we call these things out, generally the more likely they are to stop.’
As Tisdale says, ‘an interview should be a two-way street’. ‘You’re trying to work out whether this is a job that you want, and they’re trying to work out whether they want to hire you.’
This means, in some situations, you might choose to proactively disclose certain pieces of personal information in the job interview.
If you’ll be needing to negotiate flexible arrangements because of your caring responsibilities or a health issue, it might be worthwhile to be up-front so you can work out whether the job is going to suit you.
‘But if you’re just going to be working in a bar on a Friday night for six hours, how much information do they really need to know?’ Tisdale suggests.
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