An employment minefield
In the lead-up to the 2017 election, broadcaster Mark Richardson caused an uproar when he asked the then Leader of the Opposition, Jacinda Ardern, if she had plans to have children. The commonly-held view was that this question was outrageous. While a broadcaster has the liberty to ask a range of questions, an employer or potential employer cannot ask this for fear of being accused of discrimination.
Job interviews can be a challenge for both employers and applicants. There are varying opinions on the best way to interview applicants and which questions will help you ascertain if someone is the right fit for your workplace. There are a number of questions, however, that shouldn't be asked as they could be considered to be discriminatory.
Discrimination is illegal
The Human Rights Act 1993 applies to discrimination in all aspects of employment including job advertisements, application forms, interviews and job offers. It applies from the job application stage right through to the end of employment.
The prohibited grounds of discrimination are sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origin, disability, age, political opinion, employment status, family status or sexual orientation. Most of these are self-explanatory. ‘Family status’ refers to any responsibilities for the care of family members. As a future employer, you can’t discriminate because an applicant’s close relative is a known criminal or simply someone you don’t like.
In most cases an existing or recruiting employer can’t make a decision based on, or ask a potential employee a question related to, a prohibited ground (such as race, political opinion or sexual orientation) because, generally speaking, this has no relationship to the applicant’s ability to perform a job. This also applies to unpaid workers/volunteers and independent contractors.
As in the Jacinda Ardern example above, one issue that commonly arises is the temptation for employers to ask women of a certain age if they are intending to have their first baby, or to have more children. This question shouldn't be asked.
What you can ask
There are a number of personal questions you can ask when interviewing and employing staff.
Some employers have a policy that they will not employ smokers. They take the view that smokers are more likely to be susceptible to illness. This may also be relevant in certain industries such as health organisations, fitness centres and so on. They may consider that it’s not appropriate for staff to smoke as they are required to be role models.
Other employers have strict requirements regarding criminal convictions. It is acceptable to ask future employees if they have previous criminal convictions. Potential employees can be asked to submit to a police check.
Other jobs may require a certain level of fitness or other skills such as the ability to speak a second language. There are no issues with asking questions about any of these things.
When applying for a role as an advisor to a member of parliament or to be employed by a political party, there could be questions about political opinions and affiliations.
There are several exceptions to the prohibition of discrimination on the grounds of religion. The Human Rights Act does not prevent different treatment based on sex where the role is for the purposes of an organised religion, and that religion limits the role to being for one sex only to comply with the established rules of that religion.
There are no restrictions on different treatment of teachers in private schools, or social workers, who will be working solely with a group supporting people of a particular belief.
There are other exceptions that apply to the prohibition of discrimination in employment involving national security and work that is to be carried out wholly or mainly outside New Zealand, as well as on the grounds of age and disability.
Complaints based on discrimination can be made to the Human Rights Commission and then to the Human Rights Review Tribunal.
For employers, if there are any questions you wish to ask potential staff but are unsure about, do check with us first. It’s better to err on the side of caution in these situations.