Dispute Resolution & Litigation
Q: I heard that it is illegal for an interviewer to ask questions about personal information, such as age, family structure, medical history and nationality during a job interview. Is that true? (a HR personnel) A: It is not illegal to ask questions about such personal information. However, federal and state laws prohibit discrimination in Australia, and in principle, discrimination based on role and gender in a family, medical history, disability and age is prohibited. Therefore, it is generally acknowledged that in order to avoid claims of discrimination from interviewees, asking for any personal information that is not material to the work should be avoided. It should also be noted that companies of a certain size are obliged to disclose notes taken by interviewers during interviews in accordance with privacy laws, if requested by interviewees. Below are comments on some questions in relation to personal information. Example 1: Questions about age A question about age during an interview is sometimes necessary if a position requires a candidate to be at or over a certain age to do the job. For example, in liquor shops, employers must ensure that employees are at least 18 years old. Example 2: Questions about family structure, especially about pregnancy / childbirth and having dependents Any question about family structure should be avoided unless there is a solid ground for the need of such information. In addition, it is against the anti-discrimination law in Australia if a person is not employed due to the need to raise children, care for elderly parents and care for families with physical and mental disabilities. Example 3: Questions about medical history Discrimination on the grounds of disability, such as illness or injury, is illegal in Australia, so you should avoid asking questions like "Do you have any major injuries or have a chronic illness?" in the interview unless your job requires such information. Some types of work are incompatible with illness or injury. For an occupation such as mover in which carrying heavy loads is a major part of the job, asking the question "Do you currently have an injury or illness that prevents you from carrying heavy loads?" is considered reasonable. In addition, although occupational discrimination due to HIV infection is basically prohibited, in a case held in 1999, occupations with a high risk of bleeding (e.g. military personnel) were allowed to ask questions about HIV infection. As such, depending on circumstances, it may not be illegal to ask questions about medical history. Example 4: Questions about race or nationality Discrimination based on race or nationality is prohibited. However, employers are allowed to ask questions to confirm whether candidates are eligible to work, such as questions about visa conditions or Australian citizenship. For this reason, it may be reasonable to ask for visa details, a copy of your Australian birth certificate or a copy of your passport.