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Job Application Forms and Questions – Have you been sterilised?

Written by Alison Maelzer & Sarah Holderness on November 7th, 2013.

A job application form seems so simple, however they can be harder to make legally compliant than you might think.
 
In the Media
 
An extreme example recently reported by Fairfax Media was a series of ‘traumatic’ questions Chevron Australia was asking job applicants.  The questions included:
 
 
  • Details of sexually transmitted diseases;
  • What the date of the applicant’s last period was;
  • Whether the applicant had ever been pregnant and, if so, how many times;
  • How many abortions and stillborn children the applicant had had;
  • How many “normal” children had been born;
  • Whether the applicant or the applicant’s partner had been sterilised;
  • Whether the applicant and partner have tried for at least 12 months to conceive a child; and
  • Whether a physician has ever told the applicant or the applicant’s partner that either one of them has a medical condition that prevents having a child.
 
When challenged, the company’s initial response was that the medical documents were guided by industry standards to ensure that staff were safe and fit to work, and that they were lawful.  It denied that candidates who met the requirements of a position were discriminated against based on medical history.
 
The article reported an Australian employment lawyer stating that the Chevron form “would breach several discrimination and privacy laws”. The lawyer asked if “the information that is being asked reasonable to the employee carrying out their job?”.
 
Legal Requirements
 
New Zealand law is very similar.  Prospective employers should only ask applicants lawful questions that are relevant to the job. 
 
The three key pieces of legislation to consider are:
 
 
  • Employment Relations Act 2000;
  • Human Rights Act 1993; and
  • Privacy Act 1993.
 
The Human Rights Act 1993 applies to job applicants.  Both the Employment Relations Act and the Human Rights Act set out a long list of 11 prohibited grounds of discrimination.  This list includes:
 
 
  • Sex (which itself includes pregnancy and childbirth);
  • Disability (which includes the presence in the body of organisms capable of causing illness);
  • Age; and
  • Family status (which includes having the responsibility for the care of children).
 
It is not only unlawful to discriminate on the basis of one of the 11 grounds, but it is also unlawful to ask questions that would indicate an intention to discriminate.  By asking a question an employer is indicating that it is going do something with the information.  It might appear to an applicant that the employer is asking the question with the intention of not employing him or her depending on what his or her answer is.
 
The Privacy Act prohibits personal information from being collected by an employer unless the information is collected for a lawful purpose connected with a function or activity of the employer and the collection of the information is necessary for that purpose.  In other words, an employer is not allowed to collect personal information unless it actually needs it to make a recruitment decision. 
 
Top Tip for Employers
 
When drafting an application form it is useful to keep in mind the following questions:
 
 
  • Is this question relevant to the role or job?
  • Do I need to know the answer to this question?
  • Is this question lawful?
 
These questions all need to be considered in relation to the actual job functions of the particular job.  As an example, lifting may be critical for a packing role but not for an administration role.  As a consequence, an application form that asked a lifting question may be satisfactory for one role but considered discriminatory for the other.  Where an employer has a range of functions across different roles, a general application form will be of limited value, and role specific application questions may be required. 
 
As an end note, it seems that Chevron Australia took advice following the outcry in the media.  Fairfax Media subsequently reported that Chevron Australia had withdrawn its application form to amend it to ask only medical information relevant to the position.
 
Topics: Employment Law
 
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