These Interview Questions Are Illegal to Ask Potential Employees

22 January, 2019

12 mins read

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The interview stage of hiring new staff is crucial for both you and the applicant to see if they’re the right fit for the role. However, what may seem like an innocent question about someone’s life may land you in hot water. If you ask a question not directly relevant to the person’s ability to fulfil the role, it’s best not to even go there.

Before you go into an interview, have a list of questions ready to go. Cross reference every question with our list here, and if you’re doubting yourself, check the guide by the Australian Human Rights Commission.

Can’t Ask: Have you ever been arrested?

If there is a clear legal requirement for a candidate not to have a criminal record, conduct a National Police Check on each relevant applicant. You will need to disclose that a National Police Check is required in your job ad. Applicants will then need to consent to having a police check run on their name during the interview.

Lego worker being arrested by FBI

For more information on how to conduct a police check, visit the InterCheck Australia website.

Variations of this question to avoid:

  • Have you ever gone to jail?
  • Have you ever been involved with a criminal organisation?
  • Are you a member of a bikie gang?

Can’t Ask: Are you married?

Asking if someone is married or their sexual orientation and applying their answer in your decision is discriminatory. The same is said for only accepting a specific gender, unless it is a relevant criteria, such as a role for theatre or cinematic purposes.

Variations of this question to avoid:

  • What is your sexuality?
  • Are you in a same-sex relationship?
  • Are you single?

Can’t Ask: What religion do you practice?

Again, asking someone’s religion or political following and letting it influence your decision is discriminatory. An exception to the rule is a religious organisation, such as a church, who for obvious reasons, require specific followers of faith.

What you may ask is if an applicant is able to work Sundays, if it is a day you need the person to work.  

Variations of this question to avoid:

  • What religious holidays will you require off?
  • Do you believe in <insert deity>?
  • Who did you vote for?

Can’t Ask: Do you have children?

We bet you’re starting to see a pattern here. Now, if your concern is the person not being able to work specific days, you can ask this direct question. For example, would you be able to work peak times, such as holiday periods? Or, can you work weekends?

Family of 3

Variations of this question to avoid:

  • Do you have plans to have children?
  • Do you have someone in your care?
  • How old are your children, if you have any?

Can’t Ask: Where were you born?

It’s easier if we tell you what specific interview questions about nationality and language you can’t ask, and what you can.

Variations of this question to avoid:

Is English your first language?

Do you speak English?

Are you a refugee?

Interview questions you can ask:

  • Are you authorised to work in Australia?
  • What languages are you fluent in speaking and writing?

Can’t Ask: Do you have any debts?

These may sound like odd questions to ask, but some employers ask applicants these questions to indicate if they’re a possibility for theft of business property. However, for many reasons, questions about an applicant’s financial situation are completely off limits, unless:

  • You require the person to manage a trust account.
  • The trade or profession has a restriction in place by a professional or licencing body (such as an accountant).
  • If the employee is required to act as a sole trader.
  • The role is that of a director or manager of a business.

Variations of this question to avoid:

  • Do you own any property?
  • How many credit cards do you have?
  • Have you ever claimed bankruptcy?

Can’t Ask: Do you drink or use illegal drugs socially?

What someone does in their personal time is generally not a concern of an employer. However, most jobs will require employees to not have drugs or alcohol in their system due to safety reasons. You may require applicants to pass a pre-employment health check and again for routine drug and alcohol tests throughout their employment. If this is so, you will need to disclose a condition of employment is passing a health check in the job ad.

People in a wine bar

Variations of this question to avoid:

  • When was the last time you used illegal drugs?
  • Have you had a drug addiction in the past?
  • When was the last time you were intoxicated?

Can’t Ask: How old are you?

As long as someone is of legal age to work, you cannot ask them their age or a question to divulge the information. What you may ask is how long they have worked in a particular industry as this indicates experience suitability for the role.

Variations of this question to avoid:

  • When did you graduate from school/university?
  • When did you turn 18?
  • How long have you been working for?

Can’t Ask: Do you have any disabilities or health issues?

Some jobs may require a certain level of ability. In the job ad, make it clear that part of the criteria is that the applicant will need to pass a pre-employment medical. You may also want to outline any specific criteria, such as being able to lift heavy boxes or standing for prolonged periods of time. This may be a requirement for the police force, Australian Armed Forces, etc.

Construction workers lifting concrete structure

Variations of this question to avoid:

  • Are you overweight/underweight?
  • Have you ever suffered from depression or anxiety?
  • Do you or a family member have a history of cancer?

Can’t Ask: Have you ever filed for workers compensation?

This line is a little blurred. While it is not against the law to ask this question, the applicant does not have to disclose any information and their answer (if they do so or not) cannot impact your decision.

Variations of this question to avoid:

  • Are you a member of a union?
  • Have you ever filed a complaint against an employer?

Interview Questions You Can Ask

What is the worst experience you’ve ever had with a customer? This will show you how they react in stressful situations and what they consider stressful.

Say you were able to cross skill with any other team in the business, who would you choose? The applicants answer may reveal some hidden talents you can support in the future.

What is your greatest weakness? This is often a trick question. What you want is to see if the person can identify their weaknesses (everyone can have them) and how they work around it.

Looking for more advice on hiring your first employee?

We’ve covered what to do before, during and immediately after hiring someone in our article How to Hire Your First Employee. You can also subscribe to our newsletter for more small-business tips sent straight to your inbox.

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