We recently launched an updated Employer Interview Guide for 2025 in light of changing workplace conditions and the implementation of the Australian Fair Work Legislation Amendment (Closing Loopholes) Act 2023.

While we made some significant changes to the guide, the section we’ve had the most questions about is ‘You Can’t Ask That’. This suggests some of the detail in both the old and the new legislation has yet to filter down to hiring managers.

It can be confusing to understand which questions are discriminatory in Australia and therefore you can’t ask. The best place to start is with the protected attributes and understanding that new protected attributes were introduced in 2022.

Protected attributes under the Fair Work Act are race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction and social origin. More recent additions include breastfeeding, gender identity, intersex status and experiencing family and domestic violence.



Here are the four questions that sparked the most discussion.

1.     What is your background?

There has been so much discussion over the years about asking someone ‘where are you from’, that we wouldn’t have included this in the guide if we hadn’t had feedback from candidates. However, it seems there is a common interview mishap related to this question.

Many interviewers or candidates have highlighted the more misleading question, ‘What is your background?’ In most cases, interviewers are referring to work background, but it is important to clarify this when asking the question of a candidate. It can be easily misinterpreted by the candidate and perceived as discrimination, even if it is innocently asked while looking at a resume. Asking ‘tell me about your work background or employment experience’ is an easy fix, to avoid an awkward and potentially damaging start to an interview.

2.     Are you pregnant?

Most people realise they cannot randomly ask a woman if they’re pregnant. However, many hiring managers may not realise a woman is not obligated to disclose her pregnancy during the interview process, because it is a protected attribute. Even if a prospective employee is obviously pregnant, they do not need to disclose this information during an interview unless they feel comfortable to.

Questions directly relating to pregnancy or a woman’s plans to start a family should generally be avoided, including:

• When is your baby due?
• Do you have a family/children?
• Do you plan on having children any time soon?
• When do you plan on having children?
• This role involves a little bit of running around, are you going to be able to handle that in your condition?
• Will the demands involved in the role be something you’d be able to handle during your pregnancy?
• This role involves a lot of travel and time away from home, is that something you can cope with in your current condition/with a family?

Employers need to be careful about making assumptions about a candidate’s ability to perform the role, because this may be discriminatory. If there are medical concerns related to a specific requirement of the role that may impact on pregnant women, highlight these requirements and associated risks instead.

One final point to note is that if you do believe an applicant is pregnant during the hiring process, be mindful not to judge if they have chosen not to disclose this information – despite pregnancy being a protected attribute a candidate may have faced discrimination from potential employers before.

3.     Are you a union member?

This question was a surprise to many, mainly because it has not been considered in this context of recruitment. As explained by FairWork, all employees and independent contractors in Australia are free to join or not join a union.

It's illegal for a person to pressure another person about their choice to join or not join a union. It’s also illegal to take or threaten to take adverse action such as dismissing or refusing to employ a person for:

• being or not being a union member
• taking part or not taking part in industrial activity, or
• choosing to be represented, or not to be represented, by a union.

This is why it can be discriminatory to ask the question in an interview, because it may impact on your decision, or appear to. It is also essential to note that once employed, it is illegal to change an employee’s role or employment terms and conditions to put them in a worse position, as well as discriminating between them and other employees, based on their union membership.

4.     What is your gender?

Asking about gender can contravene anti-discrimination laws, as it could be used to unfairly exclude candidates based on their gender, gender identity or intersex status, all of which are protected attributes.

It is rare that an interview would ask someone outright as part of the interview process. However, this question may often coincide in an interview with the review of documentation, if this question if left unanswered on an application form.

Candidates may question why an organisation will ask this question in the first place, particularly when the form will commonly provide choices of Female, Male, Non-Binary and Prefer not to Disclose. Often, this question often appears in the form of a tick box on company application forms to fulfill WGEA reporting requirements on gender equality, and the gender pay gap.

It is essential for hiring managers to understand this context to know how to deal with it in the first place. Every form should provide an option for a potential employer not to disclose their gender, and it is best to leave it there. Some jobs or organisations may have exemptions relating to gender, but for most it will apply.

Australian anti-discrimination laws are designed to protect employees, and it is essential that hiring managers understand them in order to recruit without discrimination.

Download our Employee Interview Guide 2025 for more tools and advice from recruitment specialists.