Avoiding discrimination in job interviews

Recruiting a new member of your practice staff inevitably involves interviewing one or more applicants for the position. The job interview provides you with the opportunity to assess the applicant’s suitability for employment. However, interviews can present significant legal risk if conducted poorly and it is important to navigate through the interview process carefully to avoid potential legal claims.

During a job interview, the questions you ask applicants should focus on the skills and abilities needed to perform the role. If your discussion strays into questions or comments that are unrelated to the inherent requirements of the position, even if you are just making conversation, this may land you in hot water and put you at legal risk.

It is unlawful to discriminate against a prospective employee based on a protected characteristic, including but not limited to race, sex, age, marital status, family or carer’s responsibilities, and pregnancy. A prospective employee who feels they have been discriminated against may make a claim under State or Federal anti-discrimination laws or under the general protection provisions of the Fair Work Act 2009 (Cth).

Dos and don’ts

Asking questions that focus on the applicant’s personal characteristics could potentially be discriminatory, regardless of your intention.

Examples of questions that should generally be avoided include:

• Do you have any children? Do you intend on starting a family? Are you pregnant?
• Are you married? Do you have a husband/wife? Do you have a partner?
• How are you going to manage work and family commitments?
• How old are you?
• Do you have any health conditions? How much sick leave have you taken? Have you ever made a workers compensation claim?
• What country are you from? Where were you born? What is your accent?

The real purpose of your questions should be to determine whether the applicant can perform the inherent requirements of the position.

Examples of appropriate questions may include:

• This position is 7am to 3.30pm Monday to Friday. Are you able to work these hours?
• The practice is open on Saturdays. Are you able to work 8am to 4.30pm on Saturday?
• Doctors sometimes run late with their appointments. Would you consider working overtime if required?
• This position involves working with children. Would you be willing and capable of obtaining a working with children check?
• This position involves some heavy lifting. Would you have any trouble performing this type of work?

Tips

Here are some tips to avoiding discrimination in the job interview process:

• Create a position description so you know the specific information you need from applicants;
• Prepare for the interview and script a set of questions for all applicants;
• Interview consistently and fairly;
• Avoid asking questions based on personal characteristics;
• Assess applicants objectively based on their skills and ability to perform the requirements of the position; and
• Document your decision-making to defend any potential legal claims.