Did you know it is legal for you to ask a job applicant if he or she smokes?

The process of looking for a new worker to fill a vacancy is a source of anxiety for many employers, particularly in organisations which are not large enough to have a dedicated HR department.

The time it takes to place job ads, go through a pile of CVs, create a short list of candidates, conduct interviews and check references can seem like an irritating distraction from the real work of the business. And the stakes are high – make a bad choice and you’ll have to start the whole process over again.

Little wonder, then, that employers are highly motivated to find the right person for the job and may be tempted to ask probing questions during the interview to satisfy themselves that they are not making a bad decision.

So what questions can and can’t you ask?
Commonwealth and state laws prohibiting discrimination

Under federal and state anti-discrimination laws, it is illegal for an employer to discriminate on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, pregnancy, nationality, sexual orientation or trade union activity.

Asking a job applicant about these attributes in itself is discriminatory. These attributes are generally irrelevant to a person’s ability to do a job and they should not be a reason for treating someone differently.

The exception to this rule is when a particular attribute may be relevant to the inherent nature of the job. For example, an employer looking to fill a physically dangerous role like a tree lopper or emergency services officer can validly ask an applicant about disabilities that might make the exercise of their duties unsafe for them, co-workers and the public. It is not every disability, of course, that would rule out an applicant, but it is not discriminatory for an employer to ask in these circumstances.

Visible vs. invisible attributes

Unfortunately, there is a gap between the ideal world set out in the anti-discrimination legislation and the real world in which we live. Employers are human. And humans can have a conscious or unconscious bias against any number of the attributes listed above.

Obviously, some of the listed attributes are clearly visible and no questions need to be asked. For example, an employer who is determined only to employ a female in her twenties does not have to ask probing or discriminatory questions during interviews to find applicants who fit that brief. Similarly, an employer who is racist may reject a job applicant on the basis of an assumption on race through a visual assessment without a word being spoken.

With regard to attributes which are not necessarily obvious from reading a CV or meeting the applicant, such as political opinion, religion, sexual orientation or marital status, employers would be wise to refrain from asking probing questions, however tempting it may be.

Exemption for religious organisations

Religious organisations such as churches and schools are exempt from anti-discrimination laws in certain limited circumstances.

They can discriminate against a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity where the discrimination conforms to the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of people who follow the religion. So a religious organisation could validly ask a job applicant questions about those attributes.

However, religious organisations cannot discriminate on the basis of other grounds, including race or political beliefs.

What can employers do to protect their interests?

It is legal for you to ask a job applicant if he or she smokes. This is not discrimination. You can also ask a job applicant to undergo a general medical and a criminal history check as a condition of employment.

However, bear in mind that the employer / employee relationship should ideally be one of mutual respect and trust. Stringent pre-employment screening risks getting that relationship off to a rocky start and giving you a bad name as an employer.

What if I decide to ask probing questions anyway?

If you ask a job applicant inappropriate questions during a job interview, you could be the subject of a complaint to the Australian Human Rights Commission (AHRC) or to a state-based anti-discrimination board.

Even if the applicant cannot prove that the answer they gave to your question is the reason they didn’t get the job, they will still have a valid complaint on the basis that you asked the question. Insisting that you simply gave the job to another candidate who was more suitable will not help in your defence.

The AHRC and state anti-discrimination bodies can take action against employers who are found to be guilty of discrimination. Managers who work for the employer can be made to undergo training to improve their understanding of how they can prevent discrimination and harassment in the workplace. In more serious cases involving numerous complaints, employers can be the subject of a published rebuke and can also receive substantial fines.

Steps to take when hiring new staff

When hiring new staff, your safest option is to try to put your prejudices aside, treat all job applicants fairly and do something many employers do not do – properly check references.


About Nathan Luke:

Nathan Luke is an employment lawyer at Stacks Law Firm. Nathan is Director of Stacks Law Firm, Ballina/Byron Bay. He has over 20 years’ experience in employment and industrial law, litigation, workers compensation and work health and safety matters for workers, employers and insurers. He also provides general strategic business advice for his many fast-growing employer clients. Nathan has a unique set of skills and is known for his pragmatic approach and for his lateral thinking problem solving in urgent and difficult workplace and commercial matters.