ts new zealand legal - DDI€¢ Sections 64 & 65—There is an obligation to notify appointments and an obligation to have a procedure in place for reviewing appointments

Legal Considerations in Selection for New Zealand

Introduction The Targeted Selection® system covers the key elements of:

• Using past behaviour to predict future behaviour.

• Identifying the critical job requirements for the position.

• Organising the selection elements into a comprehensive system.

• Applying effective interview skills and techniques.

• Involving several interviewers in organised “data exchange” discussions.

• Supplementing interview information with observations from behavioural simulations (where appropriate).

These six components are critical to the accuracy, efficiency and fairness of your selection decisions. In addition, there is legislation which also must be addressed in the process. It is necessary for you to be aware of the legal obligations which exist during the interview stage, because making the right choice at this point can significantly reduce the risk of later litigation.

Legislation also protects job applicants from acts of discrimination and sets out rules relating to the collection and disclosure of personal information.

The information provided in this manual is in summary form only and should not be relied upon for detailed advice. For further details you are strongly advised to consult with your Human Resource Department, the Human Rights Commission, and the Privacy Commission, Department of Labour.

© Development Dimensions International, Inc., 1998. Revised 2011. Pittsburgh, Pennsylvania. All rights reserved under U.S., International, and Universal Copyright Conventions. Published in the United States of America, the United Kingdom, Canada, and other countries. Development Dimensions International prohibits the reproduction of any portion of these printed materials in any medium without prior written agreement. These materials may be used only with related printed and video materials. Furthermore, clients are required to provide each viewer of the videos with a complete set of related printed materials for that person’s use during and after the training. Such materials are not intended for or authorized for use by others. DDI and Targeted Selection are marks of Development Dimensions International.

T a r g e t e d S e l e c t i o n ® — L e g a l C o n s i d e r a t i o n s f o r N e w Z e a l a n d

© Development Dimensions International, Inc., 1998. Revised 2011. 2

The eight acts mentioned here in relation to employment are:

1. The Human Rights Act 1993

2. Employment Relations Act 2000

3. The Immigration Act 1987

4. The Privacy Act 1993

5. The State Sector Act 1988

6. The Official Information Act 1982

7. Local Government Official Information and Meetings Act 1987

8. Criminal Records Clean Slate Act 2004

The Human Rights Act 1993 In force from 1 February 1994, this Act replaces earlier human rights legislation the Race Relations Act 1971 and the Human Rights Commission Act 1977.

With regards to hiring, the Act is designed to ensure that selection of future employees is exercised without discrimination against any particular sector of society. These anti-discrimination laws are also contained in the Employment Relations Act 2000.

Discrimination may be direct or indirect.

Direct Discrimination This occurs when a person is openly treated less favourably than another person in the same or similar circumstances. It also occurs if a person is treated less favourably on the basis of an assumption about them, e.g., a person with a disability is not employed because of the disability although he or she has the relevant qualification and abilities.

Indirect Discrimination This type of discriminination is a rule or practice which on the face of it appears neutral, but in fact has a detrimental effect on a person. For example:

• A height or weight requirement which eliminates women.

• A requirement to travel away from home frequently might have the effect of discriminating against employees with family care responsibilities, and this would amount to unlawful discrimination unless the employer could establish good reason for the requirement.

Both forms of discrimination are unlawful.



Furthermore, it is also unlawful to discriminate against applicants who may be relatives or associates of a person affected by a “prohibited ground of discrimination,” e.g., an applicant who lived with a person with the HIV Virus.

The employer and anyone acting on the employer’s behalf are jointly liable for any discriminatory actions. As a consequence, it is essential for employers to ensure that all staff concerned with recruitment and other employment decisions are aware of the Act’s requirements.

Prohibited Grounds • Sex—which includes pregnancy and childbirth; it also includes sexual harassment.

• Marital status—which means being single, married, in a civil union or de facto relationship, separated, divorced or widowed.

• Religious belief.

• Ethical belief—meaning in this case, the lack of a religious belief.

• Colour.

• Race.

• Ethnic or national origins—which includes nationality or citizenship.

• Disability—which means:

− Physical disability or impairment.

− Physical illness.

− Psychiatric illness.

− Intellectual or psychological disability or impairment.

− Any other loss or abnormality of a body or mind function.

− Reliance on a guide dog, wheelchair, or other remedial means.

− The presence in the body or organisms capable of causing illness (i.e., it is illegal to discriminate against an applicant where that person is HIV positive or has aids or diseases.

• Age—protection against discrimination begins at age 16. There is no upper limit. There is an exception where age is a genuine qualification for a job, e.g., a bartender.

• Political opinion—including not having a political opinion.

• Employment status—that is, being unemployed or a beneficiary.



• Family status—that is:

− Having or not having responsibility for children or other dependents.

− Being married to or being in a civil union or de facto relationship with a particular person.

− Being a relative of a particular person.

• Sexual orientation—meaning a heterosexual, homosexual, transgender, lesbian or bisexual orientation.

There are a number of exceptions to the prohibited grounds. For more detailed information contact the Human Rights Commission.

The Act does allow for affirmative action. An employer can positively discriminate against a person on one of the prohibited grounds of discrimination if:

• It is done in good faith,

• The employer’s intention is to assist people against whom discrimination would be unlawful under the Act, and

• The assisted person needs to achieve an equal place with others.

Employment Application Forms Employment application forms commonly seek personal information such as sex, age, date and place of birth, marital status, number of dependents, and nationality. The Act prohibits the use of these factors in employment decisions, or permits them to be used in only limited situations. Thus, application blanks and other personnel forms should probably be revised to exclude requests for this information, or to seek the information in a way that cannot be taken as indication of an intention to discriminate on the basis of such information. Only questions that are valid and directly relevant to the job or the applicant’s ability to do the job should be included.

At the application stage, there is no need to know the sex or age or family circumstances, for example, of applicants for most positions. If these factors are relevant and covered by the Act’s exceptions, then that should probably be included in the advertisement for the position.

In situations where personal information is job related and relevant to the employment decision, the employer should probably explain to the applicant why the information is being sought.



Records Maintaining recruitment records and selection records of the reasons for decisions may be the only way to successfully defend an allegation of unlawful behaviour. These records should be kept for at least one year.

Employment Relations Act 2000 This Act makes includes all of the prohibited grounds of discrimination contained in the Human Rights Act. In addition, it prohibits discrimination on the basis of a person’s involvement in the activities of a union.

The Immigration Act This Act makes it an offence for an employer to knowingly employ a person who requires but does not have a work permit.

An employer must, therefore, decline to employ anyone known to be an overstayer or without a work permit and must dismiss the employee if this becomes evident at a later stage. An employee working illegally is not legally employable in the first place. It is acceptable to ask all candidates “Do you have the right of permanent residency in NZ or do you have a work permit?” If yes, ask, “can you provide evidence if required?”

The Privacy Act 1993 This Act requires that personal information be collected (where collection is necessary and for a lawful purpose) directly from the person to whom it relates unless they give permission to do otherwise. An employer must therefore ask permission from the applicant before approaching a former employer for a reference.

The job applicant is entitled to see any personal information that employers have collected in the course of assessing their applications such as references or test results. The Privacy Act does provide limited reasons for the withholding of material. There is, however, no obligation to disclose the contents of a reference if the person giving it asked that these remain confidential or where confidentiality is implied.

The Privacy Act also allows applicants to seek access to any personal information held by an employer and to seek correction if the information is considered inaccurate.



The State Sector Act—1988 This Act was significantly amended by the State Sector Amendment Act 1989 and by the Employment Contracts Act in 1990.

This Act relates to employment practices in the State Services.

The following sections of the Act should be read in full:

• Section 60—Appointment procedures must give preference to the best suited applicant for a vacancy.

• Section 61—Vacancies must be notified whenever practicable in a manner sufficient to enable suitably qualified persons to apply.

• Sections 64 & 65—There is an obligation to notify appointments and an obligation to have a procedure in place for reviewing appointments.

• Sections 56 & 58—The Chief Executive is required to develop and publish an equal employment opportunities program each year and to ensure that the plan is complied with throughout the departments.

The Official Information Act This Act relates to the right of access to personal information by corporate persons—the right of a natural person to access personal information about themselves is contained in the Privacy Act 1993, with one exception.

Where an individual seeks information as to the reasons for a decision which affects that person, and which decision was made by a public sector organisation, then the right of access is governed by this Act.

A person can request a written statement of: the findings on material issues of fact; a reference to the information on which the findings were based; and the reasons for the decision or recommendation.

Availability of the information on which findings were based is subject to the information (being evaluative material such as suitability, eligibility or qualifications for employment, appointment to office or promotion) not having been provided in confidence.



Local Government Official Information and Meetings Act Again the right of access to personal information under this Act relates to corporate bodies. Natural persons who apply for a position with a local authority may also request information about a decision or recommendation made in respect of that person by the local authority.

The limitation on the right to obtain such information also applies.

Typically, these two Acts would relate to information being requested by an unsuccessful applicant who did not get the job.

Criminal Records Clean Slate Act 2004 The Act establishes a clean slate scheme whereby eligible individuals are deemed to have a clean criminal record if they satisfy the eligibility criteria under the Act. The scheme does not permit an individual to withhold information about his or her criminal record if it relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country). The scheme does not apply in certain other limited circumstances, including where the individual has applied to act in a role involving the care and protection (but not education) of children, or has applied for employment:

• Involving the national security of New Zealand.

• As a Judge, Justice of the Peace, or Community Magistrate.

• As a police employee, prison officer, probation officer, or security officer.

Characteristics of Legal Selection Systems A selection system with legal credibility contains the following attributes:

• Job-related targets—This means that the system must measure the dimensions (characteristics or skills) needed for successful job performance. That is, the criteria on which selection is ultimately based should be framed to measure the applicant’s ability to perform, and their suitability to the position. The criteria should not focus on personal characteristics of the applicant, such as age or sex, unless these are ‘genuine occupational requirements.’ For example, where a position involved driving a motor vehicle, you could require the applicant to be of an age where they could obtain a licence.



• Job-related components—Just as the aims of a selection system must be job related, so must each component of the system. Unless a component is shown to elicit job related components in a reliable and legal manner, it cannot be used. If selection process includes a component that is unrelated to the job, then it may invalidate the entire selection system. This is especially relevant where personality or aptitude tests are used. Any selection test which forms part of the selection process must be referable to the position.

• Consistency in handling applicants—A selection system must be applied uniformly to all applicants within a job category. If you apply a component with some applicants but not others, your company will have difficulty explaining why that component is necessary for successful job performance.

When Targeted Selection is implemented as recommended, it meets the requirements of a legally credible selection system.



A Legal and Meaningful Interview The following are guidelines for conducting interviews that are both legal and meaningful.

Know the Employment Laws You or a representative of your company should check with the Human Rights Commission and the Department of Labour to learn about applicable rules for pre-employment enquires. Your company’s interviewers should know and adhere to them.

Avoid Potentially Risky Questions Discrimination laws prohibit the use of certain questions as part of the selection process, unless there are genuine occupational requirements which justify the line of questioning. Areas which are potentially risky and, therefore, best avoided, include:

• Age.

• Racial origin.

• Marital status.

• Family life.

• Sexual preference.

• Physical or mental capacity.

• Criminal convictions more than 10 years old.

Phrase Questions Clearly Discrimination problems usually don’t arise from the intent of a question, but from how it is asked. It’s legal to directly seek information regarding possible problems arising from job-related requirements, such as travel, long hours, or the need for specialised education. Interviewers’ attempts to uncover these areas through inappropriate questions have, however, often led to Discrimination hearings.

For example, an interviewer might assume that a female applicant for a sales position might have more difficulty meeting the requirements of frequent overnight travel than a male applicant. This assumption might lead the interviewer to inquire about the woman’s children and arrangements for their care or about her spouse’s attitude toward her travelling with male colleagues. These questions are illegal.



Instead, the interviewer should say: “This position requires frequent overnight travel. Are you able to meet this job requirement?” This avoids illegal questions while exacting desired information and legitimises the area of discussion by relating the information to job requirements.

The questions asked in an interview situation should always be asked in terms of the applicant’s ability to meet the commitments of the job. The interviewer should make sure that the questions are focused on the essential requirements of the job, not the interviewer’s perceptions regarding applicants’ ability/inability to meet job requirements. Additionally, the interviewer should concentrate on the applicant’s abilities, not their disabilities.

Explain the Reasoning Behind Sensitive Questions Applicants sometimes file discrimination complaints because they don’t realise that seemingly inappropriate questions really are job related. Therefore, as an interviewer, you have two tasks: to ask only legal, job-related questions and to help the applicant understand the reasoning behind any questions that might appear to be sensitive.

Here is an example of clarifying the requirements of a job. If a movie director needs an actor to portray Captain Cook, he legitimately could consider only white male applicants. To protect himself, his ad should state: “Wanted: white male actor to play Capt. Cook” rather than “Wanted: white male actor.”

The first ad legitimises the race and gender requirements and deters possible complaints.

The same holds true in interviews. You should explain how job requirements relate to a line of questioning before proceeding. This is a way to avoid discrimination problems and potentially save your organisation unnecessary expense.

Listed below and on the next page are some examples of acceptable and unacceptable interview questions. Notice how the acceptable questions are specific and job related.

Unacceptable: • How much could you travel? (This does not convey to the applicant the minimum

requirements of the job.)

• Will it bother you that you’ll be travelling with a man (woman)?

• Do you own your own home, or do you rent?

• Most of the people who work here are married. Do you think you’d have any trouble fitting in?

• How many children do you have?



Acceptable: • The job requires 50 percent travel. Will that cause you any difficulty?

• You and your district manager will travel together during the first two months of your training. Does this present a problem?

• This job would require you to relocate. Is that a problem?

Use Job-Oriented, Competency-Based Interviews and Simulations The interviewing techniques presented in Targeted Selection are designed to work within the guidelines of established hiring laws. By focusing on job-based capabilities, you run little risk of unintentionally straying outside the boundaries of current legally acceptable practices.

Interview Situations Write down your interview questions to the following situations:

• Situation 1: A woman attends a job interview with you. She is clearly pregnant. How do you raise your concern about the job getting done by the woman, with the prospect of a baby on the way, maternity leave, etc.?

• Situation 2: A woman attends a job interview with you and her resume indicates she has three pre-school-aged children. How do you raise your concerns about the job getting done?

• Situation 3: A single-parent has applied for a job requiring considerable overseas travel. How do you raise your concern?

• Situation 4: A man with one arm attends a job interview with you, for a sales representative position. He meets all the job criteria, but you are concerned about how your customers will react. How do you raise your concern?

• Situation 5: You have advertised for butchers’ apprentices and have received hundreds of applications. You established a short list based on academic ability and have a list of five males and one female. You have no other female apprentices or employees in this area. How do you raise your concern about how the female will fit in?

• Situation 6: A well-qualified applicant for your sales representative position is about to conclude an interview with you for the job, when he announces he is of a religious faith that requires him to leave work at 2 pm on Fridays. This is usually the time you get your team together for a weekly debrief. What do you say?



Approaches to Interview Questions in each Situation When trying to elicit relevant information during an interview, remember to relate the questions to the applicant’s ability to meet the requirements of the position. This will ensure that any information obtained is directly relevant to the “criteria for success in the position.”

Situation 1 Your concern will be continuity in the job. Ask questions such as, “I require this work to be built up over the next two years. It will be a full-time role and may include some overtime. Is there any reason why you would not be able to perform the essential functions of this job?

Note that maternity leave only applies after 12 months continuous employment, so in this case, maternity leave does not apply, and an applicant may need to be made aware of this. (Note: have regard to Parental Leave Legislation.)

Any questions about the following are illegal:

• Sickness during pregnancy and time off.

• Emotions during pregnancy.

• Leaving due to pregnancy or child rearing.

Situation 2 Your concern is the woman’s ability to sustain continued employment/attendance requirements. (You may discuss the hours involved and if they present a problem for the applicant)

Do not:

• Ask about child care provisions.

• Ask why the woman isn’t staying at home.

• Ask why the woman wants to work, rather than stay at home.

• Ask what her husband thinks about her working.

These are illegal. Remember, you could not comfortably ask these questions of a man!

Situation 3 Again, your concern is continued employment and the ability to fulfill overseas travel requirements. You can state that the job involves considerable overseas travel and ask if that would cause the applicant any difficulty.



Do not:

• Ask about child care provisions.

• Ask why the parent wants overseas travel, rather than staying at home.

• Discuss how right/wrong it is to leave children.

NB: We didn’t say whether the parent was female or male!

Situation 4 Do not automatically assume that customers will respond negatively. Your focus should always remain on this applicant’s ability to fill this position. Ask questions such as: “As a sales representative you will be required to liaise directly with customers, frequently on a one-on-one basis. You may also be involved in demonstrating the products to them. Will this present any problems for you?”

Situation 5 Don’t assume that there will be any problems in this situation. Simply explain the work environment to the applicant and invite her to discuss any concerns she may have. You could say:

“If you are chosen for this position you will be working with four other male apprentices, John, Jason, Michael, and Fred. Your supervisor will be Harry Smith, and he will instruct you on your duties and your progress. Do you have any questions or concerns about the environment you will be working in? Would you like me to clarify anything for you?”

Situation 6 Think through the job responsibilities. You need to decide how important attendance at the weekly debrief would be and whether any alternative arrangements could be made. If you decide they are important ask:

“How have you handled your job responsibilities in your past job, given you leave at 2 p.m. on Fridays? Did this present any problems? Could you ever make exceptions? What arrangements did you make to ensure you met work commitments at this time?”



Obtaining Information and Guidance • Approach the Department of Labour and the Human Rights Commission for relevant

materials.

• Discuss issues that affect your workplace with your colleagues/supervisors. Act to ensure discrimination is not occurring. Ensure there is a clear grievance procedure in place.

• Check your employment application forms are non-discriminatory. Avoid questions on age, sex, national or ethnic origin, previous names, languages (if they are not clearly job related), religion, military service, physical disability (non job-related), medical information, height and weight, criminal record, traffic convictions and accidents, marital status, photograph requests prior to interview, race or colour, relatives (other than who to contact in an emergency).

• Think about how to educate your company in discrimination areas, such as showing films on discrimination, etc. This is especially useful for raising issues relating to indirect or unconscious discrimination. Assistance in this area can be obtained from:

− The Human Rights Commission.

− The Department of Labour.



Appendix 1—Summary of Key Discrimination Legislation Legislation Grounds of Discrimination Areas Covered

Human Rights Act 1993

Sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, sexual orientation.

Prohibits discrimination in all aspects of employment. Covers all public and private sector employees. Covers employees, unpaid workers, and contract workers.

Employment Relations Act 2000

Sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, sexual orientation. (Identical to the Human Rights Act). In addition involvement in the activities of a union.

• Prohibits discrimination by an employer when hiring or dismissing someone. Also prohibits discrimination in the terms and conditions of employment.

• Makes sexual and racial harassment unlawful.

• Covers only employees, not contractors or unpaid workers.



Legal Questions Exercise Place a in the appropriate box to indicate whether the question is acceptable and may be asked in an interview. Space is provided after each question to record your rationale or notes on group discussion.

Part 1—General Questions A = Acceptable U = Unacceptable

Questions A U Notes 1. How old are you?

2. This job requires you to handle large sums of money. Have you ever been convicted of theft? If so, can you give details?

3. Do you have children at home?

4. Frankly, many of our employees are Catholic. Do you think you’d have any problems fitting in here?

5. Do you wish to be addressed as Mrs., Miss, or Ms.?

6. Where were you born?

7. I’m going to need a copy of your birth certificate with this application. Is that all right with you?

8. Have you ever worked for this company under a different name?

9. How long have you been a resident of this city?

10. Are there any foreign languages you speak and write fluently? If so, what are they?



Questions A U Notes 11. Do you have any relatives employed

by this organisation?

12. Can you give me the name and address of a person you would want to be notified in case of an accident or emergency?

13. Would you be available for overtime work on Saturdays and Sundays?

14. Have you ever been married?

15. Who will take care of your children while you’re working?

16. If you are not a New Zealand citizen or have permanent resident status, do you have a visa or other documentation that will allow you to work in New Zealand?

17. Can you give me a small photo of yourself to accompany this application? You know, just for identification purposes?

18. Did you have any experience in the military relative to computers?

19. The maximum entrance age for our retirement program is 40. Just out of curiosity, would you be eligible?

20. What would you do if your spouse got a job in another city?

21. Your regular workday would be 8 a.m. to 4 p.m., Saturday through Wednesday. Are there any reasons why you couldn’t work these hours?



Questions A U Notes 22. Who suggested you apply for the

position here?

23. What schools have you attended?

24. I’d really like to get a reference from your pastor.

25. What an unusual name you have. What is your nationality?

26. Are you ‘expecting’? Do you hope to increase your family in the future?

27. We check all applicant credit ratings before an employment offer. Is it OK to check your credit rating?

Part 2—Disability Discrimination Questions Questions A U Notes 1. Assuming we do everything we can to

adapt the job to your situation, do you have any impairments (physical, mental or medical) that would interfere with your ability to perform the job for which you’ve applied?

2. Have you ever been treated for the following diseases?

3. How many days were you absent from work last year?

4. Do you have any distinguishing physical characteristics such as birthmarks, scars, etc.?

5. Have you ever filed for workers’ compensation?



Questions A U Notes 6. Have you ever been addicted to illegal

drugs?

7. This job requires an employee to transport 20kg bags of frozen beans from a loading dock, down two flights of steps, to a processing machine. Can you perform this function?

What was the most illegal question you were ever asked in an interview?



Legal Considerations Exercise—Answer Key

Part 1—General Questions 1. How old are you?

Acceptable only if an inherent requirement of the job. (May raise issues of age discrimination.)

2. This job requires you to handle large sums of money. Have you ever been convicted of theft? If so, can you give details.

It is permissible to ask about criminal histories but such questions should be relevant to the job. For example, a prospective financial controller could legitimately be asked about any convictions for fraud or dishonesty. Asking about convictions that are more than 10 years old could be considered excessive or irrelevant.

3. Do you have children at home?

Unacceptable. (Potentially raises issues of sex discrimination and marital status discrimination.)

4. Frankly, many of our employees are Catholic. Do you think you’d have any problems fitting in here?

Generally unacceptable. Raises issues of less favourable treatment based on a person’s religious beliefs.

(Note: This question is not unlawful if employment is for a member of an institution that is conducted in accordance with the doctrines of a particular religion.)

5. Do you wish to be addressed as Mrs., Miss, or Ms.?

Generally unacceptable. (Potentially raises issues of sex discrimination and marital status discrimination.)

A better way to ask this question is to ask, “How do you prefer to be addressed?” and let the applicant suggest Mrs., Ms., or Miss.

6. Where were you born?

Unacceptable. (Raises issues of potential national origin discrimination.)

7. I’m going to need a copy of your birth certificate with this application. Is that all right with you?

Generally unacceptable. (Raises a number of potential issues of discrimination on the ground of nationality, ethnic origin, ethno-religious origin and, of course, age.)



8. Have you ever worked for this company under a different name?

Acceptable. (The only possible grounds of discrimination could be marital status or transgender discrimination.)

9. How long have you been a resident of this city?

Acceptable.

10. Are there any foreign languages you speak and write fluently? If so, what are they?

Acceptable. However, questions should only be asked if job related?

11. Do you have any relatives employed by this organization to whom you would report if you were employed here?

Acceptable. (However, subsequent less favourable treatment based on spouse’s identity could raise discriminatory issues such as race, marital status, etc.)

12. Can you give me the name and address of a person you would want to be notified in case of an accident or emergency?

Acceptable, but relevant only after employment.

13. Would you be available for overtime work on Saturdays and Sundays?

Acceptable (if asked exclusively, i.e., without follow-up questioning related to child care arrangements, or religious beliefs).

14. Have you ever been married?

Unacceptable. (Raises issues of marital status discrimination.)

15. Who will take care of your children while you’re working?

Unacceptable. (Potentially raises issues of sex discrimination and marital status discrimination.)

16. If you are not a New Zealand citizen or have permanent resident status, do you have a visa or other documentation that will allow you to work in New Zealand?

Acceptable. (This question addresses whether the applicant has the relevant visas to enable them to work lawfully in New Zealand.)

17. Can you give me a small photo of yourself to accompany this application? You know, just for identification purposes?

Generally unacceptable. (May raise issues of discrimination on the grounds of sex, age, race, colour, ethnic or national origins.)



18. Do you have any experience in the military relative to computers?

Acceptable. (But it is unlikely to be asked in the New Zealand context.)

19. The maximum entrance age for our retirement program is 40. Just out of curiosity, would you be eligible?

Unacceptable. (Raises issues related to age discrimination.)

20. What would you do if your spouse got a job in another state?

Unacceptable. (Raises issues related to marital status or sex discrimination.)

21. Your regular workday would be 8am to 4pm, Saturday through Wednesday. Are there any reasons why you couldn’t work these hours?

Acceptable. (As in question 13, questions should be asked exclusively to overcome issues of potential indirect discrimination.)

22. Who suggested you apply for the position here?

Acceptable.

23. What schools have you attended?

Acceptable.

24. I’d really like to get a reference from your pastor. Can you arrange that?

Unacceptable. (Builds in assumptions about religious beliefs.)

25. What an unusual name you have. What is your nationality?

Unacceptable. (May raise issues related to racial discrimination.)

26. Are you “expecting”? Do you hope to increase your family in the future?

Unacceptable. (Raises issues of pregnancy and sex discrimination.)

27. We check all applicant credit ratings before an employment offer. Is it okay to check your credit rating?

Acceptable, only where relevant to the role.

(Note: If the check were to be made, it would require more than a verbal consent.)



Part 2—Disability Discrimination Questions 1. Assuming we do everything we can to adapt the job to your situation, do you

have any impairments (physical, mental or medical) that would interfere with your ability to perform the job for which you’ve applied?

Unacceptable if asked only of a person with a disability and not asked of all applicants.

2. Have you been treated for the following diseases?

Unacceptable. (Raises issues of disability discrimination.). There is an exception in respect of diseases that cause a risk to public health.

3. How many days were you absent from work last year?

Acceptable. (It does not specify or link absence from work to illness or family responsibilities or specific characteristics.)

4. Do you have any distinguishing characteristics such as birthmarks, scars, etc?

Unacceptable (Raises issues of disability discrimination.)

5. Have you ever filed for worker’s compensation?

Unacceptable. (May raise issues of discrimination as to the employment status.)

6. Have you ever been addicted to illegal drugs?

Acceptable but unadvisable. (As the law presently stands, it is unlikely that asking this question could give rise to disability discrimination. It may however give rise to issues of criminal records in some circumstances.)

7. This job requires an employee to transport 20kg bags of frozen beans from the loading dock, down two flights of steps, to a processing machine. Can you perform this function?

Acceptable, if an inherent requirement of the job.

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ts new zealand legal - DDI€¢ Sections 64 & 65—There is an obligation to notify appointments and an obligation to have a procedure in place for reviewing appointments