A recent decision has highlighted the need for employers to comply with their anti-discrimination obligations during interviews with prospective employees, or risk potential litigation.

Recent decision

The Queensland Civil and Administrative Tribunal (QCAT)1 has ordered a Gold Coast manufacturer, Goldpath Pty Ltd, to apologise to a potential employee for unlawfully asking him unnecessary questions about his age and parental status during an employment interview.

The complainant attended an interview for a job at Goldpath’s warehouse. The questions asked of the complainant during the interview included whether he had any children, what his date of birth was and the number of sick days he had taken in his prior employment.

The complainant alleged that the questions were a request for unnecessary information in breach of section 124 of the Anti-Discrimination Act 1991 (Qld) (Act). QCAT agreed and held there was no justifiable basis upon which the questions could reasonably be required for a purpose that did not involve discrimination.

A timely reminder

This case serves as a timely reminder that employers should not request information from a person that may lead to a basis for unlawful discrimination. The conduct is expressly prohibited in Queensland, and due to the reverse onus of proof for employment discrimination claims under the Fair Work Act 2009 (Cth), should be avoided generally in every State and Territory.

To avoid potential litigation, employers should ensure that people conducting interviews ask questions that are only relevant to the skills and abilities required for the position.

Examples of questions that should be avoided include:

  • “How old are you?”
  • “Do you have any children?”
  • “Are you married?”
  • “Have you ever been on workers’ compensation?”

Asking these types of questions could lead to incorrect assumptions about, for example, the applicant’s ability to travel or perform overtime or whether they will have the ability to undertake manual labour, whether this was the intention of the interviewer or not. It also won’t matter if these types of questions are raised even during general conversation.

Instead, questions should focus on the requirements of the position. For example:

  • “The position requires a significant amount of interstate travel. Are you able to meet this requirement?”
  • “The position requires physical manoeuvrability and lifting. Would you have any difficulty undertaking the physical components of the role?”
  • “A position of this seniority requires a reasonable degree of flexibility in working hours. Are you able to be flexible in that regard?”
  • “Are there any factors that would prevent you from meeting the requirements of the position?”

To ensure that statutory and legal obligations are met, all employers should adopt a 2-step approach to preventing discrimination in the workplace:

  1. regularly undertake a review of their anti-discrimination policies and procedures and include in this review their recruitment and interview procedures, to ensure that they accurately reflect the current legislative requirements, and
  2. ensure that all staff undergo regular training in the policies and procedures so that they are aware of and understand their obligations.

Failure to take these steps may leave an employer in a position where they are unable to successfully defend a discrimination claim.