It’s important for employers to know where to draw the line when it comes to asking questions in a job interview. Have you ever wondered whether it’s legal to ask a person their age in an interview? If so, keep reading about what you need to know and what you should avoid.
What does Anti-Discrimination Law Say?
Discrimination on the basis of age is regulated by Australian Legislation under the Age Discrimination Act 2004 (Cth). The Act is part of the anti-discrimination laws we have here in Australia. So, what is answer to the question: is it legal to ask a person their age in an interview? The answer is no, you can’t ask a person their age in an interview. You also can’t refuse to employ someone because of their age. This is explained in Section 18 of the Age Discrimination Act 2004 (Cth). To break it down, here are the circumstances where an employer can’t discriminate against a person based on age:
- In employment arrangements;
- Deciding who should be offered the job and;
- The terms and conditions of employment that’s being offered.
Are There Exceptions?
Yes.
Like much of the law, there are exceptions. It’s important to know which ones apply. This is where it gets a little complicated. While it’s unlawful to ask a person their age, employers may have to ask a person their age if it’s required to do a certain job. This is referred to as ‘inherent requirements’. If the role you’re interviewing for has these requirements, it’s legal to ask a person their age in an interview.
This is also covered by Section 18 of the Age Discrimination Act 2004 (Cth). In other words, age discrimination for this reason isn’t against the law if an interviewee can’t carry out the duties that a job requires. Employers must be aware that it’s their responsibility to prevent age discrimination. They must take reasonable steps to ensure that discrimination doesn’t occur or make things awkward in an interview.
Inherent Requirements: When Do They Apply?
To give you a better idea of when it’s acceptable to ask a person their age in a job interview or recruitment process, here are some examples. Think of it this way, the role of a bartender is to serve alcohol. A person must be at least 18 years old to do this. This is an example of an inherent requirement. It’s not illegal to ask a person their age because they can’t be below the age of 18 to serve alcohol by law.
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Similarly, if a person works at a casino and their job involves using gaming machines they also need to prove that they are 18 years of age or above. Being 18 years of age or over is a requirement to work in the gambling industry. Asking someone their age is necessary to undertake training for Responsible Service of Alcohol (RSA) and Responsible Conduct of Gambling (RCG) training. This is of course, if they haven’t already done so.
This also applies when deciding whether a person is unable to carry out the inherent requirements of a job because of their age. Employers must consider the following:
- The person’s previous training, qualifications and experience to the job they’re applying for;
- If the person is already employed by the employer and their performance; and
- Other factors that are relevant to consider.
What to Avoid
It’s crucial to not get these exceptions mixed up if you’re trying to find out whether an exception applies. Asking a person their age in an interview to see if they will ‘fit in’ with your employees isn’t an exception. It’s unlawful to ask a person their age to get an idea of how long they will stay with the company, or move onto another role. Situations like this are likely to amount to age discrimination. This is what you should avoid when you’re conducting an interview.
Where to From Here?
Australian anti-discrimination law says that discriminating against a person on the basis of their age is unlawful. Why? Because this may amount to age discrimination. Formal complaints can be made to the Australian Human Rights Commission (AHRC) under the Act. If you have been treated unfavourably because of your age and age isn’t an inherent requirement of the role, then you have the right to speak to a lawyer.
Employers must consider whether age is a requirement of the job they are advertising. If being 18 years old or above is necessary to fulfil the requirements, then yes it’s legal to ask a person their age in a job interview. You may want to put this in the role description. If you’re an employer and would like further advice on this, Lawpath is here to future-proof your company with a discrimination policy. We use technology to provide services based on your needs. Feel free to contact us here.
