• Resources

Everyone wants to make sure they’re hiring the best possible candidates for the job, but did you know there are certain things employers cannot legally ask prospective employees?

Under the Equal Opportunity Act 2010, an employer cannot ask prospective employees for information that could be used to form the basis of discrimination. This is likely to include:

Age

Under the Age Discrimination Act 2004, employers may not use a prospective employee’s age (actual or presumed) to determine their suitability for a role.

Gender

Employers may not ask a prospective employee what gender they identify as, since it has no bearing on their ability to perform the duties of their role.

Ethnicity

Under the Racial Discrimination Act 1975, employers may not discriminate against a prospective employee because of their ethnic background. However, employers may inquire about related information only if it directly relates to the duties of the role. (See below.)

Sexual orientation

Employers may not inquire about a prospective employee’s sexual orientation, nor can they discriminate against them based on this information.

Religion

Employers may not discriminate against a prospective employee based on their religious beliefs or practice.

Voting habits

Employers may not use a prospective employee’s political opinion or party affiliation to determine their suitability for a role.

Family plans

Under the Sex Discrimination Act 1984, employers may not ask a prospective employee about their family plans. This includes their marital status or plans to have or adopt a child.

Disability

Under the Disability Discrimination Act 1992, employers may not discriminate against a prospective employee because of their physical or mental disability. However, an employer may require this information only if it directly impacts their ability to perform the role. (See below.)

Union membership

Employers may not discriminate against employees who are members of a union. They may also not require membership.

Are there exceptions?

Certain information that is reasonably required for non-discriminatory purposes may be asked depending on the circumstances (Fair Work Act 2009). For example, this may include information such as:

• the prospective employee’s citizenship or visa status in order to ascertain their right to work in Australia
• whether the prospective employer can speak a certain language where required in that role, or
• if the prospective employer has a physical disability that may impede their ability to perform a role where manual labour is required.

More information

You can find more information about workplace discrimination on the Fair Work Ombudsman website.