Questions an employer cannot ask in a job interview in New Zealand (and how to answer if they do)

What section 23 of the Human Rights Act covers

Section 22 of the Human Rights Act makes it unlawful to refuse someone a job, or offer worse terms, because of a prohibited ground. Section 23 reaches back to the start: it is unlawful to use an application form, or ask any question of or about an applicant, that indicates, or could reasonably be understood as indicating, an intention to discriminate. Employment New Zealand confirms the Act covers advertisements, application forms, interviews and job offers.

The grounds in section 21 are sex (including pregnancy and childbirth), marital status, religious or ethical belief, colour, race, ethnic or national origins (including nationality and citizenship), disability (including physical and psychiatric illness), age from 16, political opinion, employment status (being unemployed, or on a benefit or ACC), family status and sexual orientation.

The Human Rights Commission's answers for job seekers turn that into everyday questions. An employer usually should not ask:

• How old you are, or your date of birth, or anything else that gives your age away.
• Whether you are married, single, separated or in a relationship.
• Whether you have children, are pregnant, plan to have children, or what your childcare arrangements are.
• About your medical or ACC history.
• Whether you are on a benefit or ACC, or why you have been out of work. Questions about your history should be about your skills and experience.
• About your religious beliefs or practices.

The rule covers recruiters too: section 22(2) applies to anyone finding staff for an employer. Our guide to employment rights in New Zealand sets out the wider protections once you are in the job.

One similar question is lawful. The Commission says an employer can ask every applicant whether they are entitled to work in New Zealand, because it is illegal to employ someone who is not. Say plainly: citizen, resident, or the visa you hold.

The exceptions that make some questions lawful

Sections 24 to 35 list where different treatment is allowed, and so where a related question can be fair. The ones job seekers meet most are these:

• A genuine occupational qualification. Sex or age, where it is genuinely needed for authenticity (an actor for a particular part, for example), and age where it is a genuine qualification for the job, including for safety. The Commission's examples include a legal minimum age, such as for managing licensed premises.
• Privacy, religion and domestic work. Sex, where a role must be held by one sex for reasonable privacy; some roles for an organised religion; and domestic work in a private household.
• Disability, but only where the job could be done only with special services or facilities that it is not reasonable to expect the employer to provide, or only with a risk of harm that it is not reasonable to take and that reasonable measures could not reduce.
• Family status, where you would be in a reporting line with your partner or a relative, or there is a risk of collusion. The Commission says an employer may ask whether your partner works for the same employer or in the same industry.

Section 35 limits all of them. An exception does not apply if only some of the duties fall within it and, with some adjustment that would not unreasonably disrupt the employer, another employee could do those duties.

Health is the area people find most confusing. An employer cannot ask about your medical history, but the Commission says they can explain what the job involves and ask whether you have any medical condition or disability that would stop you from doing it properly. The Privacy Commissioner's guidance points the same way: an employer should only ask for information relevant to your suitability for the particular role. Our article on job hunting with a disability covers when to talk about a condition.

You do not have to say you are pregnant

The Human Rights Commission is direct: an employer should not ask whether you are pregnant, and you do not need to tell them. Sex includes pregnancy in section 21, so turning someone down for it is discrimination.

There is one situation where telling them is wise. If the job involves exposure to something known to be harmful in pregnancy, such as some chemicals or hazardous substances, the employer can point that out on the form or in the interview, and the Commission says it would then be sensible to let them know.

The timing question most people are really asking is about parental leave. Employment New Zealand says primary carer leave of up to 26 weeks needs you to have worked for the same employer for at least an average of 10 hours a week in the 6 months just before the due date. With less than 6 months there, you cannot take primary carer leave, though you may be able to take negotiated carer leave. Leave is requested in writing at least 3 months before the due date. You can ask about paid parental leave in an interview without saying why. Our guide to parental leave in New Zealand covers the leave and the payments in full.

Three ways to answer in the room

Many of these questions are asked out of habit, and you choose how much it matters. These three answers keep the interview moving.

1. Answer the concern, not the question. A question about children is often a clumsy way of asking about availability. You can speak to that without giving anything personal away.

2. Redirect politely. Acknowledge it lightly and bring the conversation back to the job.

3. Decline plainly. If the question is clearly out of bounds, or it is the second or third of its kind, you can say so calmly.

Whichever you choose, keep it short and even. Our guide to New Zealand job interview questions covers the questions you should expect and prepare for.

Write it down the same day: the date, who was in the room, the question in their words as near as you can remember, and what you said. In Your Job Hunt, each job keeps its own notes beside the interview date and the people you met, so a question like this is recorded against the right application while it is fresh.

How to complain, and why your notes matter

Employment New Zealand suggests first talking with the employer if you feel able to, with a support person if you want one.

If that is not enough, or not appropriate, the Human Rights Commission offers a free and confidential dispute resolution service for complaints under the Human Rights Act. You can complain with its online form, or call its information and support line on 0800 496 877. If it can help, a mediator contacts you, and nobody is told without your permission. Results can include an apology, an agreement not to do it again, training or compensation. If a complaint is not resolved, you can take it to the Human Rights Review Tribunal, which is independent of the Commission, and apply to the Office of Human Rights Proceedings for free legal representation. Every complaint turns on its own facts.

Your notes are the backbone of any complaint: a dated account written the same day, with names and the words used, carries far more weight than a memory weeks later. You also usually have the right under the Privacy Act to see the personal information an employer collected about you during recruitment, which can include the interviewer's notes. If they refuse, you can complain to the Privacy Commissioner on 0800 803 909.

None of this means you have to complain. Many people simply note it and decide whether they still want the job.

Keep the details while they are fresh