When you are asked a wrong question
Some interview inquiries may be improper or even be illegal. writes Diana Clement
Job interviews can be nerveracking. There’s nothing worse than being asked inappropriate or illegal questions. It happens, however, even in this day and age.
“Do you plan to have children?” Or “do you have any pre-existing medical conditions?”
Sometimes the discriminatory questions can be quite subtle. You might be asked when you left school, rather than the direct “how old are you?”.
Or, says Jennifer Mills, employment lawyer at Jennifer Mills & Associates, an illegal question related to ethnic origins could be phrased from a curiosity standpoint: “where is your family name from?”
Mills says the Human Rights Act
1993 applies to discrimination in all aspects of employment including interviews, job advertisements, applications, and offers.
Not only does this apply to prospective employees, but also volunteers and independent contractors. “The overarching theme is that questions asked should only relate to one’s suitability and ability to perform the requirements of the job,” she says.
Illegal questions include your:
● age
● relationship situation
● sexual orientation or gender identity
● religion
● nationality or ethnic origin
● political views
● current or past employers’ work practices
● home life and
● health/disability.
Careers New Zealand has a list of other ways those illegal questions can be dressed up. These are still illegal because they don’t relate directly to how you do your job.
● What does your wife/husband do?
● Do you have a partner?
● Who do you vote for?
● Did you go to church on the weekend?
● Do you believe in God?
● Do you have kids yet? or Do you want kids?
● Were you born here?
● Do you have a clean-slate conviction?
● How many sick days did you take last year? and
● Have you ever had to leave a role for health reasons?
Employers should also avoid asking questions that directly touch upon whether someone has been unemployed. Unemployed candidates often fear that will stand in their way. “Questions about an applicant’s employment history should be seeking to determine ability to do the job and not why the applicant was absent from the workforce,” she says.
Questions about criminal records may be illegal. Both the Privacy Act and the Criminal Records (Clean Slate) Act 2004 also affect what an employer can and can’t ask you, says Mills. “An employer can ask an applicant to disclose their criminal record. However, an applicant will have the right to withhold such information if it is covered by the Criminal Records (Clean Slate) Act.”
There are certain types of jobs where these questions about criminal convictions can be asked legally, such as teaching jobs.
Although asking about race/ethnicity is not allowed, an employer can ask whether the prospective employee is entitled to work in New Zealand because it is unlawful to employ people who are not entitled to work in the country.
Employers sometimes ask illegal questions about prospective employees’ health and disabilities.
Mills cites the case Imperial Enterprises Ltd v Attwood where an employee was asked in her application form if she had any medical problems. The candidate failed to declare all her medical conditions and was dismissed for misrepresentation. The question, however, was illegal.
“Both the Employment Relations Authority and the Employment Court found in favour of her,” says Mills. “The Employment Court found that by asking the question in such a broad way, it enabled the employer to potentially reject an applicant on the basis that she suffered from a disability or medical condition even if it would have minimal or no impact on her job.”
Mills says the employer could have asked the question in a narrower way such as asking about medical conditions to establish the kind of adjustments that might be required in the workplace. “Then the question would ‘conceivably’ be acceptable, and would be an exception to the prohibition against discrimination.”
As well as the employment courts, complaints are made to the Privacy Commissioner. In case 87513, the job seeker was asked questions about his personal life and health status.
“One such question was about the applicant’s relationship with his wife and children,” says Mills.
“The Privacy Commissioner was of the opinion that the employer had collected more information than was necessary for the purpose of recruiting for the relevant position.”
The $64,000 question is how to respond on the spot in an interview. Your response could be make or break for your prospects if the interviewer is displeased or suspicious about your answer.
Your choices in responding to illegal questions include deflecting by moving on and asking the interviewer a question; or choosing not to answer.
Done well you get the interviewer back on track without having to reply with information that is not relevant to your ability to do the job.
If you’re concerned that you may be a candidate who could be disadvantaged by prejudice, it’s worth having a few answers ready to deflect illegal questions. That could be. “I am wondering how this relates to the job? Could you tell me more about the role?”
Or if you don’t want to answer the question reply: “why do you ask?” That’s less confrontational than “how does this question relate to the job?”.
Another deflection could be to answer that your personal life won’t get in the way of any of the requirements of the job. You could say: “My family obligations/religious beliefs have never interfered with my work.” Or you could answer: “I keep my work and personal life separate and will be 100 per cent dedicated to this job.”
And if you’re asked about your plans to have children, you could simply answer “no”. You can’t be penalised in the future if you change your mind.
Sometimes the interviewer may be new or not properly cognisant of the laws and ask an illegal question innocently. That doesn’t make it okay.
You can reply with surprise and ask whether marital status, age, or whatever it is has been a problem for employees of that organisation.
Mills says if employers ask an illegal question and you do not get the job you can make a complaint to the Human Rights Commission.
“The Commission will try to resolve the complaint using informal methods such as mediation. If the complaint is not resolved through the Commission’s process, the applicant may take their complaint to the Human Rights Review Tribunal.”
Questions asked should only relate to one’s suitability and ability to perform the requirements of the job,