Your rights: What the interviewer can't ask

By Rani Amaranathan of Phillips Fox

Q. I recently attended an interview and was asked what I think are strange questions. These included: what memberships do I hold in social, religious and community groups? They asked if I was expecting any children and what my daycare arrangements were for my 4-year-old. They also asked if my parents were born in this country.

I have been advised that some questions are not allowed to be asked at a job interview. Can you clarify what these are and if I can take action against the company that asked me these questions? (I didn't get the job.)

A. The interviewer may have unlawfully discriminated against you. Issues about discrimination often puzzle both interviewers and job applicants. For example, why is it that a Catholic Samoan parent can lawfully refuse to employ a non-Catholic nanny but probably not refuse to employ a non-Samoan nanny?

Some employers could refuse to hire members of, say, the Green Party, but other employers cannot?

The Human Rights Act 1993 protects job applicants from discrimination against them on certain grounds. But it does not give a definite list of questions interviewers cannot ask job candidates.

Perhaps the best guidance is to remember that interviewers should ask only questions that relate to the jobs requirements and how qualified the candidate is for the job.

What the Human Rights Act does mean is that when you are interviewed for a job, you should not usually be asked questions which might reasonably be understood to indicate that the employer intends to discriminate against you because of your: sex (including whether you are pregnant); marital status; religious belief; ethical belief; colour; race; ethnic or national origins; disability; age; political opinion; employment status; family status; sexual orientation.

Interviewers should generally avoid questions that relate or might appear to relate to any of the above. But there are exceptions.

One of the main ones is if the reason for excluding the applicant relates to a genuine occupational qualification (i.e. a genuine need in order for the person to do the job).

This is why the National Party could probably refuse to employ you if you belonged to the Green Party, even though for most other employers that would be unlawful discrimination.

Another exception is if you are applying for domestic employment in a private household (but this exception does not allow discrimination on the grounds of race, marital or family status).

This is why a Catholic Samoan parent can exclude non-Catholic applicants for a nanny position but cannot exclude non-Samoan applicants. The parent could rely on the genuine occupational qualification exception to exclude, say, applicants who did not speak Samoan, or who did not have sufficient knowledge of the Samoan culture.

If you are applying for a job with a religious organisation or private school you can be excluded because of your sex or religion, but not on other grounds, such as race.

If the job pays youth rates you can be excluded if you are over 20 years of age.

In your case, your interviewer clearly asked you questions that might indicate an intention not to employ you on several of the prohibited grounds of discrimination.

Asking you whether you belong to any social, religious and community groups might indicate an intention not to offer you employment because of your religious beliefs (or for other prohibited reasons).

Asking you if you were expecting any children and what daycare arrangements you intended to make for your 4-year-old could indicate an intention not to offer you the job on the grounds of your sex (because sex includes pregnancy) and your family status (having a child).

Generally, interviewers should not ask questions about pregnancy, birth control, family planning or dependants.

Asking whether your parents were born in this country could indicate an intention to discriminate on the grounds of your ethnic or national origins. It does not matter if the interviewer has made incorrect assumptions about your ethnic or national origins.

If you believe the company you were interviewed with did not offer you the job on one or more of the prohibited grounds of discrimination, you can ask the Human Rights Commission to assist you or give you more information.

A mediator from the commission can assist you through their disputes resolution process.

One of the outcomes might be compensation for any hurt to feelings and/or losses you experienced because of the discrimination. There is a possibility you might be able to apply to the Employment Relations Authority for resolution of a grievance relating to unlawful discrimination, instead of the commission. But it is not clear whether this applies to job applicants.

* Rani Amaranathan is a solicitor with Phillips Fox. Answers are of a general nature only and should not be substituted for specific legal advice.

* Email your employment law questions in 200 words or less to the email address below with "Your rights" in the subject line. Questions are not normally acknowledged on receipt and will be answered only through this column.

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