Breaching anti-discrimination law in the workplace

by Kylie Field

Sep 01, 2017

Employment lawyers are warning bosses that asking their potential employees about their cultural heritage could be a breach of anti-discrimination laws. 

In recent weeks a number of parliamentarians have come under the spotlight about citizenship and currently MP’s like the Nationals Barnaby Joyce is still pending a verdict from the High Court. Joyce’s case falls under Section 44 of the Constitution, after it was revealed he was a dual Australian and New Zealand citizen by descent. 

Slater and Gordon employment lawyer Henry Pill said questions about a person’s citizenship are only permissible in the context of Parliament. 

“State and federal anti-discrimination laws prohibit questions about a person’s race or nationality in the workplace,” Pill said. 

“While politicians need to be asked about their citizenship status during pre-selection, that sort of questioning is off limits in an ordinary job interview. 

“Questions during interviews need to comply with anti-discrimination laws and that includes avoiding unnecessary questions about nationality, race, religion, sexuality and age.” 

According to Pill employers can still ask questions about whether an employee or potential employee has the right to work in Australia, or any other country that is required for the role and has outlined what is OK to ask. 

Okay 

  • Do you have the right to work in Australia?
  • This job requires work in another country; do you have the right to work there?

Not Okay

  • What country are you from?
  • Where were you born?
  • Where are your parents from?
  • In which countries do you have citizenship?

 

Pill said dealing with discriminatory interview question could be difficult for workers and jobseekers. 

“One option is to politely decline to answer, but it’s a good idea to make a note of the question and keep it in mind in case you need to make a claim for discrimination,” Pill said. 

“Complaints can be made to the Australian Human Rights Commission and each state also has an anti-discrimination commission or organisation that can assist, and legal advice can be sought.” 

“However, the onus should really be on employers to familiarise themselves with anti-discrimination legislation and ensure they don’t ask unlawful questions in the first place.”

 

 

 Image sourced from Flickr cc: Public Domain Photography

 


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