By Peter Vitale
Small and medium sized employers need to become more aware of how interviewing a candidate for employment could land them in hot water.
The range of anti-discrimination and industrial laws that operate in an employment situation are often just as applicable to the job interview process.
Sometimes employers let their guard down and ask questions that could imply that their decision to employ or not to employ someone has been influenced by considerations that constitute unlawful discrimination.
Here are nine inappropriate questions and why you should avoid them.
Are you married/engaged/planning a family/who looks after your kids (especially to women)?
Let’s face facts, a lot of employers find the prospect of dealing with employees going on maternity leave a bother they’d rather not have. For those employers who still think it’s important to their business to actively promote such a policy – think again.
You will probably be in breach of at least nine separate provisions of state and Federal law. The reported cases are replete with examples of employers who failed to offer a job, or a promotion, to women with responsibility for caring for children. Use of terms such as ‘darl’, ‘dear’ and ‘luv’ are also advised against.
How old are you?
It is a rare case where the age of a prospective employee will be relevant to whether or not they can do the job. And anyway, what about the skills shortage we hear so much about?
Recently we wrote about case involving applicants for positions as customer service officers with an Australian domestic airline. Age was found to be a defining factor in the rejection of their applications. That is unlawful age discrimination.
One of the few exceptions arose in a case involving an international pilot, a Mr Christie. Because of international aviation rules, pilots aged over 60 were not allowed to land at certain airports around the world. Mr Christie’s employer stopped him from flying all international routes after he turned 60, which he claimed was unlawful discrimination.
The matter ultimately went to the High Court which found that it was reasonable for the airline to make it a condition that international pilots be able to fly all scheduled routes.
So, Howard or Rudd?
Small talk in an interview breaks the ice, but this is not the topic to start with. Discriminating against potential job applicants on the ground of political belief is unlawful in all states and territories and under Federal law.
The main exception in all jurisdictions is where the employment is as an adviser to a politician or a minister of the crown. Involvement in union activity can sometimes, but not always, be a basis for discrimination on the basis of political beliefs. In Queensland an attempt to rely on this exception when terminating an employee of a government department was unsuccessful.
Do you go to mass on Sundays?
Discrimination on the basis of religion is a hot topic at present. As one Tasmanian case demonstrates, employers need to be prepared to allow employees to take religious holidays, even if they do not coincide with public holidays based on Christian holidays.
Many large employers also accommodate employees’ requirements for a quiet prayer room, even if not for that sole dedicated purpose.
Are you a cross dresser, then?
Many employers would be aware that the law in most state and Federal jurisdictions prohibits discrimination on the basis of sexual orientation. Many of these laws also contain specific reference to persons with transsexual or transgender characteristics.
In New South Wales, an employment agency was found to have discriminated against a woman, who 10 years earlier had been on the agency’s books as a man. They refused to recommend the woman for a position for which she was qualified on the basis that their client “wanted a woman – a vanilla woman”.
How will you make it up those stairs?
Interviewing disabled or injured employees sometimes presents particularly thorny issues for employers. Issues relating to those impairments should never be a consideration for employers unless it may have a legitimate impact on the employee’s capacity to perform the inherent requirements of the job.
In some cases, a pre-employment medical test may be justified. Furthermore, in some states, workers’ compensation legislation legitimises questions that have an impact on the employee’s ability to do the job. Untruthful answers may subsequently provide a basis for the employee’s workers’ compensation claim to be denied and in some cases may provide a basis for termination of employment.
Difficulties arise in circumstances where the employer may be required to provide some reasonable alteration or facilities to assist the employee perform his or her duties. The question of reasonableness is a vexed one. It may be reasonable for a local council to install a lift to allow disabled employees access to other parts of a building, but what about the case of a small private enterprise?
How long were you ‘inside’ for?
All states, except Victoria and South Australia, and the Federal jurisdiction have so-called “spent convictions” legislation. In general terms these laws mean that an employer may not discriminate against a prospective employee on the basis of “old” criminal convictions, usually at least 10 years prior. Exceptions may apply for serious offences and for offences involving dishonesty.
Is that a European name?
Many employers are aware that discrimination on the basis of race is unlawful. Race is almost without exception an irrelevant factor bearing on the employee’s capacity to do the job. Sometimes issues of race and religion can become blurred and there are some cases relating to employment in roles that require adherence to a specific religion which illustrate this difficulty.
What do you call that haircut?
So far Victoria is the only state to make discrimination on the basis of personal appearance unlawful. The cases demonstrate that personal appearance can cover a wide range of issues, including weight, hairstyle and tattoos. An employer is nevertheless entitled to establish a reasonable dress standard.
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