Job interviews are the most commonly used tool to test a candidate’s suitability for a role. Most employers have a bank of questions used to assess candidates’ skills and experience – but it’s equally important you understand the questions you can’t lawfully ask.
To help you feel more confident asking about disability in an interview we’ve put together a list of questions you can’t ask, and candidates don’t have to answer when talking about their disability.
Questions employers can’t lawfully ask
It is a breach of the Fair Work Discrimination Act 2009 to ask any questions about personal attributes – for example disability, race, sex, or age – that do not relate to the role or position description. The general rule of thumb is that if the question seeks information beyond what is relevant to the job, then it is a breach.
1. Do you have a disability?
This question is never acceptable – even once a candidate is employed – and is a clear breach of the Fair Work Discrimination Act 2009.
The decision to disclose a disability (or not) rests with the candidate.
Candidates have no legal obligation to disclose a disability unless it directly relates to the job requirements. If they are required to complete a form or medical test that asks for information about a disability or illness, it is perfectly acceptable for an applicant to write ‘not applicable’ if their disability or medical condition won’t impact their performance.
You should not ask questions about how a candidate acquired their disability, specific information about their disability or how their disability will impact their work.
Similar interview questions employers can’t ask:
- Do you have a medical condition?
- Do you have a mental health condition?
2. Do you have any past injuries?
This question could be deemed relevant if you are asking about a specific injury that would directly affect the candidate’s work. Rather than asking “Do you have any injuries?” a more appropriate way to phrase the question might be, “Do you have any injuries that impact your ability to lift heavy objects?”
It is important to make sure that all questions directly reference the task or job at hand. Avoid vague queries and be ready to provide further information on how their answer will be used.
Similar interview questions employers can’t ask:
- Have you ever filed a claim through WorkCover?
3. Do you take any medication?
Candidates should never feel pressured to answer any questions relating to the specifics of their disability – these are strictly off limits.
Similar interview questions employers can’t ask:
- How regularly do you attend medical appointments?
- Have you ever been treated for a mental health condition?
4. Do you need any reasonable adjustments?
Employers should wait until after they have made a job offer to discuss reasonable adjustments that are not relevant to the interview. However, if these adjustments are intrinsically tied to the job function, then it is legal to ask during the interview.
All job advertisements should include a statement that explains that your business is an equal opportunities employer who will provide reasonable adjustments to people with disability. It should invite potential applicants with disability to contact the employer to identify any additional support they might need to complete the application and interview process.
It is your duty to comply with all requests that are reasonable. This might include changing interview locations to enable wheelchair access, providing an interpreter, or scheduling the interview for a particular time of day.
Similar interview questions employers can’t ask:
- What will it cost to accommodate your disability?
5. Do you receive any government benefits?
It is unlawful to discriminate against someone on the basis that they are employed, unemployed, or receiving benefits. Candidates do not have to disclose at any stage whether they are receiving benefits or how much money they have earned in the past.
Although it is legal to ask a candidate about their current wage, it may be more appropriate to consider what they are willing to work for. This demonstrates respect for the candidate’s background and privacy and establishes a more suitable conversation.
Similar interview questions employers can’t ask:
- Are you currently working?
- Have your wages ever been garnished?
- Do you own a home or rent?
How can my business be more disability inclusive?
If you’ve never hired someone with disability, you may be unsure where to start. EPIC Assist is your local disability employment service that can work with you to break down the barriers around hiring people with disability. As specialists in the disability employment sector, we’ve prepared a number of practical strategies to help your business build a more disability inclusive workforce.
If you are not already connected with EPIC Assist, contact us today to find out how we can help connect you with suitable candidates.
