The rule of thumb is that if the question is job related, it should be appropriate to be asked and answered.The Employment Equity Act sets out at Section 9 in respect of the provision of unfair discrimination, medical testing and physic metric testing, that an applicant for employment will be considered as an employee. The effect of this is that employers must be mindful of the questions asked in interviews as the questions (although even asked in innocence) could create the perception of discrimination, which could result in unnecessary litigation.

For this reason, it is suggested that the following questions be avoided:

Do you have plans for having children?

This could be perceived as discriminating against an applicant on the grounds of pregnancy or family responsibility.   It would be better to phrase the question as follows:   Do you have responsibilities other than work which would or could prevent you from performing specific job requirements such as traveling?

What religion are you?

Whilst this could be a legitimate question requiring an answer given the shift work responsibilities it could be perceived as discriminatory in terms of religion.   It would be better to phrase the question as follows:   The position requires shift work /working over weekends, will you be able to work the required schedule?”

Who do you support politically?

There is no need for such a question and this question will be considered discriminatory in respect of “political opinion”.   There is no better manner in which to phrase such a question and it is to be avoided.

What is your marital status?

Whilst this does not seem to be a discriminatory question and is usually asked to break the ice, it could be perceived as discriminatory.   Should you wish to find out more about a candidate, it would be best to ask an open ended question in which the candidate volunteers the information, such as “tell us about yourself?”.

Please list any conditions or diseases which you were treated for in the last three years?

  • Whilst this may be a necessary question in order to determine the suitability of the candidate and his or her ability to attend at work, the manner in which it is phrased lends itself to discrimination.
  • It would be better to phrase the question as follows:  This job is physically demanding, can you manage all the job duties efficiently?”

Ensuring that your interview is in line with the Employment Equity Act and does not constitute discrimination, is imperative in ensuring that there is no unnecessary litigation pursued by an unsuccessful candidate.

For more information and assistance with training or advice, please contact Tracey Mouton on 041 501 9832 or traceym@goldlaw.co.za .

© Copyright - Goldberg & de Villiers Inc.