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Personal questions in job applications require a legitimate basis: lawyer

By Kristin Ramsey28 Oct 2013

This article is reproduced with permission from Shortlist. Click here to read the full article (login required).

Energy company Chevron has come under fire this week after asking job applicants about their reproductive history, and Ramsey, who is an associate director at Hynes Legal, says the questions seem "quite extraordinary" on face value, because Chevron has not disclosed how the information is relevant to applicants' ability to perform the roles.

"Best practice is if you don't need the information, don't ask for it... [Chevron] have stated that the questions are voluntary so that to me indicates they don't need the answer," she told Shortlist.

"If you are going to ask these questions, explain to candidates why you're asking them, and I think you're more likely to get a better response from a candidate and also to get more usable information."

Sometimes employers or recruiters will have a legitimate basis for asking applicants about their personal circumstances, but candidates need to understand why they're being asked for that information, says Ramsey.

"A typical situation is the often incorrect assumption that women with children might not be able to undertake travel requirements for a job.

"While it's not appropriate to just ask someone 'How many children do you have?' or 'How many children are you intending to have?' it is appropriate to explain the travel requirements for a job and ask the person if there's anything that could prevent them from doing that," she says.

Stick to the inherent requirements

Before asking candidates any questions, Ramsey advises recruiters to figure out what information they are trying to elicit.

As a general rule of thumb, questions should be designed to shed light on whether a candidate can undertake the role's inherent requirements, but it can sometimes be difficult to pinpoint what these requirements are.

"If you haven't properly identified the inherent requirements then you could very well stray into grey areas and ask questions which really you've got no right to ask and no right to the information," she warns.

In a receptionist role, for example, candidates must have the ability to answer a phone, but how they answer the phone should not affect their suitability for the role.

"A person might miss out on the job if they suffered from a disability which meant they couldn't use their hands to answer the phone, when really the inherent requirement of the job is answering the phone, not using their hands," says Ramsey.

What are the risks?

Ramsey advises employers and recruiters to keep three things in mind before requesting personal information from candidates:

Privacy complaints - Often employers don't know what to do with the information they've collected, and this can get them into trouble under privacy laws, says Ramsey.

"There's restrictions around what you can do with information, how it has to be stored, [and] who it can be disclosed to."

Unsuccessful candidates - If a candidate provides personal information and is unsuccessful in securing the role, this can leave employers vulnerable to legal claims, she says.

"The implication could be that you've not given them the role because of some of this medical information and therefore that could give rise to a discrimination claim."

Health and safety - If the information reveals the candidates has a medical condition, employers have an obligation to make adjustments to accommodate that person in the workplace, she says.

"You need to make sure you take steps to protect that person's health and safety while they're at work."