What questions can you not ask a candidate in a job interview?
I’ll get straight to it; it’s any of these:
- Questions about age or date of birth
- Questions about marital status, relationships, or family plans
- Questions about race, nationality, ethnicity, or national origin
- Questions about religion or religious practices
- Questions about sexual orientation or gender identity
- Questions about political views or affiliations
- Questions about current or past employers’ work practices
- Broad questions about medical conditions or disabilities
- Questions about pregnancy or plans to have children
- Questions about union membership or activities
- Questions about criminal records, especially those covered by clean slate laws
- Questions about current employment status (employed, unemployed, on benefits)
- Questions about physical or mental disabilities not directly related to job requirements
- Questions about sick leave history
- Questions requesting social media passwords or private information
Why can you not ask these questions in a job interview?
New Zealand has strict laws in place to prevent employers from asking prospective employees certain questions. The key principle behind these laws is to prevent interviewers from asking questions that:
Don’t focus on the candidate’s ability to perform the job;
Focus on personal characteristics that are not relevant to the role;
Are discriminatory of race, age, gender or political beliefs.
What laws do we have in place to prevent these types of questions from being asked?
New Zealand has a number of laws in place to protect job candidates from being asked irrelevant, unreasonable or discriminatory questions. The following legislation stipulates these laws:
Human Rights Act 1993
This law prohibits discrimination based on protected characteristics such as race, ethnicity, national origin, gender, sexual orientation, age, disability, marital status, family status, religious or ethical beliefs, and political opinions. It covers various areas of public life, including employment.
Questions related to these characteristics are generally not allowed, as they could lead to discriminatory hiring practices.
Employment Relations Act 2000
This Act specifically includes union membership status and involvement in union activities as prohibited grounds for discrimination. This protection covers refusing or omitting to offer employment, dismissal, or subjecting an employee to any detriment because of their union membership or activities.
Privacy Act 2020
This law governs the collection and use of personal information, including during hiring processes.
With regard to hiring, you must:
- Only collect information necessary for the hiring decision
- Inform applicants about how their information will be used
- Keep the information secure
- Allow applicants to access and correct their information
- Only use the information for the purpose of hiring unless otherwise agreed
Criminal Records (Clean Slate) Act 2004
This law allows people with minor convictions to conceal their criminal record in certain circumstances. Employers cannot ask about clean slate convictions.
Some employers may have concerns about this law. However, there are criteria an individual must meet to be eligible for the clean slate scheme, namely:
- No convictions within the last seven years
- Never been sentenced to a custodial sentence (e.g. imprisonment)
- Never been ordered by a court to be detained in a hospital due to mental condition instead of being sentenced
- Not been convicted of a “specified offence” (e.g. sexual offending against children)
- Paid in full any fine, reparation or costs ordered by the court
- Never been indefinitely disqualified from driving
If an individual is eligible for the scheme, the effect is:
- They are deemed to have no criminal record for most purposes
- They have the right to have their criminal record concealed by government departments and law enforcement agencies
Health and Safety at Work Act 2015
While employers can ask about the ability to perform job duties safely, broad questions about medical conditions are generally not allowed.
Employers can require a pre-employment medical assessment, but only after a job offer has been made and only if it’s required for all employees in similar positions.
Any health information collected must be necessary for determining if the person can perform the job safely and must be kept confidential.
Employers have obligations to make reasonable accommodations for employees with disabilities unless it would cause unreasonable disruption.
Parental Leave and Employment Protection Act 1987
Employers cannot ask job applicants about their pregnancy status or plans to have children. Such questions are considered discriminatory.
The focus of job interviews should be on the candidate’s ability to perform the job, not their personal family plans. If an applicant is visibly pregnant, the employer still cannot ask questions about the pregnancy or how it might affect their work.
How can I ensure that I don’t ask any illegal questions in a job interview?
In short, it’s easy: just don’t ask any questions that aren’t relevant to how well a candidate can perform the role. And don’t ask any questions about the following things:
- Age
- Race, ethnicity or national origin
- Religion
- Gender, sexual orientation or marital status
- Disability or medical conditions (except related to job requirements)
- Pregnancy or plans to have children
- Union membership
- Criminal convictions covered by clean slate laws
- Political views
However, in practice, it can be difficult at times to know whether a certain question that you think is important to ask is, in fact, acceptable. Here’s a good rule of thumb: ask yourself if you are only asking that question because of the applicant’s personal attributes that aren’t relevant to the role, and consider whether you would ask the same question to every candidate. If you answered yes to the first part of that question, then you probably shouldn’t ask it.
If you are an employer, it is good practice to familiarise yourself with the legislation stated above to ensure you don’t inadvertently ask a question that breaks any laws. If you ever find yourself wanting to ask a question that feels like it could be discriminatory, always err on the side of caution and don’t ask it; seek legal advice if you really need to. This will help to protect your organisation from potential legal claims, but most importantly, will protect your prospective employees from discriminatory questions and intrusions into privacy and, ultimately, support the vulnerable individuals in the job market that these laws are designed to protect.