What Questions Can and Can't You Ask an Applicant in a Job Interview?

We’ve had three female candidates in the last month asked in separate job interviews whether they are planning to have children any time soon. All three women withdrew their applications as a result. So, why can’t you ask that question? And what questions can you ask?

Here we are in 2022 and I’m completely gob-smacked that I feel the need to write this blog.

But after recent feedback from a few female candidates, it seems I do. I’ll make this really clear and simple so there is no ambiguity.

You cannot ask a woman in an interview if or when she is planning to have children. It is illegal.

Pretty straight forward really. It is illegal.

In the last week, we have had three shortlisted female candidates asked this question (or something like it) by male interviewers. To keep with the clear and simple theme, and to avoid any confusion you as the reader may have, here is what they actually asked:

Interviewer 1 – When are you planning to have children?

Interviewer 2 – So, you must be about 31 years old – do you plan to have children at all?

Interviewer 3 – Do you have children and if so, how many?

And when was the last time a man was asked any question like this in a job interview? I’m pretty confident the answer would be never!

Needless to say, we’ve had a gentle chat to those Hiring Managers and helped them understand both their personal blunder and the risk to their organisation for breaching the Australian Sex Discrimination Act, which applies whole heartedly to employment situations.

Section 27 of the Sex Discrimination Act specifically states that it is unlawful to ask a woman during a job interview whether she is pregnant or intends to become pregnant if that information is requested in connection with determining whether to offer her employment.

Perhaps the last two years of not being in the office every day has blurred our memories a bit about what you can and can’t do and say at work.

So, I thought I’d give everyone a refresher.

What questions can’t you ask candidates (of any gender) in a job interview?

Years ago, I had a client who asked a highly qualified female candidate if she was married. Rather taken aback, the candidate nonetheless answered the question. “No, I’m not”, she said. His response was “Why not? What’s wrong with you?” The candidate, who had gathered her thoughts quickly, replied “Nothing. It’s the men who have proposed to me that I’ve had the problem with” and ended the interview. True story.

Here are a bunch of questions you just cannot ask in a job interview. I could go into the various reasons why, but suffice to say, they all breach one of the pieces of legislation above.

• Are you in a same-sex relationship?
• Are you in a relationship?
• Are you married or do you intend to get married?
• Are you pregnant or planning to start a family?
• How old are you?
• What’s your ethnic background?
• What religion are you?
• Who do you vote for?
• Do you have a physical or mental disability that we should know about?
• Does anyone in your family have a mental illness?
• Are any of your children often sick?
• Do you have to care for elderly parents?

Any question that could be deemed to influence the outcome of a job interview for reasons not relevant to the candidate’s ability to execute the functions of the job are problematic and should be avoided.

“But we don’t use that information when we’re deciding who is best for the job”, I hear you say. Well, why ask them then?

What questions can you ask to try to get the information you need?

While it’s illegal to discriminate against someone on the grounds mentioned above, we understand why some personal information might be helpful. Essentially, there’s only one main question you need to ask to find out if the person you are interviewing not only can do the job technically but will also give you a sense of security that they will do the job to the standard you need. And you don’t ask it until the end of the interview.

Is there anything you can think of that might prevent you from being able to consistently execute your duties in this role?

If your interview to that point has been congenial, respectful and transparent you’ll be surprised at what a candidate is willing to share with you.

If they disclose they have school-aged children you may wish to reasonably ask a question like “What plans do you have for school holiday periods to make sure you can still come to work?”

If they disclose they have elderly parents that ‘need help now and then’, you could reasonably ask “Will that create any stress for you in a new job?”

Obviously the things that impact all of us from time to time – e.g. if the Child Care calls and says I need to pick up my child early because she is unwell – are not grounds for determining someone is not able to do the job!

Summary

Learning how to formulate interview questions that don’t introduce bias is a great skill to learn. Not only will it keep you out of hot water but it will enable you to better understand the candidates on your shortlist – a great help when you have to start the difficult process of choosing one over another.

If you’re confused about whether a question is appropriate or not, simply ask yourself:

• Would I be offended if someone asked me that question?
• Would I think the question was irrelevant to my ability to do the job?
• Would I think that how I manage my life outside work is no business of theirs?
• If I was asked that question I’d think they were looking for someone:

• Of the opposite gender
• Who didn’t have kids or elderly parents
• Who was single and could work long hours

It’s likely that if you would find the question offensive, then so will others.

Useful resources

What legislation applies to recruitment and employment?

Let’s start with a little reminder of what legislation applies to hiring staff and what covers them in your workplace. We are not lawyers but we are qualified to advise what the applicable legislation is and what it serves to achieve. The list below are the laws that cover all Australians – you should check your state requirements as well.

If you want a detailed legal explanation of these on a clause by clause basis, we recommend you talk to a specialist employment lawyer.

Fair Work Act 2009

The Fair Work Act 2009 (FW Act) provides protections of certain rights, including:

• workplace rights
• the right to engage in industrial activities
• the right to be free from unlawful discrimination

The National Employment Standards

The National Employment Standards (NES) are 11 minimum employment entitlements that have to be provided to all employees.

Independent Contractors Act 2006

The Independent Contractors Act 2006 (Cth) (Act) seeks to establish the legal obligations, liabilities and rights that arise in service contracts between independent contractors and businesses.

Privacy Act 1988

The Privacy Act 1988 (Privacy Act) is the principal piece of Australian legislation protecting the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information in the federal public sector and in the private sector, including references secured in the recruitment process.

The Workplace Gender Equality Act 2012

The Workplace Gender Equality Act 2012 main goals are to: promote and improve gender equality (including equal remuneration between women and men) in employment and in the workplace. support employers to remove barriers to the full and equal participation of women in the workforce.

Age Discrimination Act 2004

The Age Discrimination Act 2004 (ADA) prohibits discrimination in employment on the basis of age.

Sex Discrimination Act 1984

The Sex Discrimination Act 1984 states that it is unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity.

Australian Human Rights Commission Act 1986

An Act to establish the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission), to make provision in relation to human rights and in relation to equal opportunity in employment.

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against a person, in many areas of public life, including employment, education, getting or using services, renting or buying a house or unit, and accessing public places, because of their disability.

Racial Discrimination Act 1975

The Racial Discrimination Act 1975 promotes equality before the law for all people regardless of race, colour or national or ethnic origin. It is unlawful to discrimination against people on the basis of race, colour, descent or national or ethnic origin. Read more about racial discrimination.

State based Work Health and Safety legislation

Work health and safety (WHS) covers the health and safety requirements that apply to business type and location.