Hiring your next team member can be exciting - but interviews can also be a legal minefield if you’re not careful.
Most employers aren’t trying to do the wrong thing. The problem is that “normal” small talk can quickly drift into topics that expose you to discrimination risk, privacy issues, or an unfair process. And if a candidate feels they’ve been treated unlawfully, the consequences can be expensive and time-consuming.
This guide is updated to reflect current expectations around fair recruitment and modern workplace practices, including remote work, online interviews, and increased awareness of privacy and discrimination issues. The good news? With a bit of structure, you can run interviews that are both friendly and legally safe.
What Makes An Interview Question “Illegal” In New Zealand?
In New Zealand, there isn’t a single list that says “these exact interview questions are illegal”. Instead, the risk comes from why you’re asking and how you use the information.
Broadly, interview questions become a legal problem when they:
- Relate to a prohibited ground of discrimination and could influence a hiring decision (even unintentionally).
- Collect personal information that isn’t necessary for the role, especially if you can’t justify it.
- Create an unfair or inconsistent recruitment process (for example, asking different candidates different “personal” questions that aren’t role-related).
Discrimination Risk: The Big One
Under the Human Rights Act 1993, it’s generally unlawful to discriminate in employment (including during recruitment) on certain prohibited grounds, such as:
- sex (including pregnancy and childbirth)
- marital status, family status
- religious belief
- ethical belief
- colour, race, ethnic or national origins
- disability
- age
- political opinion
- employment status
- sexual orientation
If your questions focus on these areas (and they’re not genuinely relevant to the role), you increase the risk that a candidate could argue they were treated unfairly or unlawfully.
Privacy Risk: “Do I Really Need To Know That?”
Recruitment also involves collecting personal information - CVs, references, notes from interviews, and sometimes background checks. Under the Privacy Act 2020, you should only collect information that’s reasonably necessary for your hiring purpose, and you should handle it safely and transparently.
This is one reason “curiosity questions” are risky. Even if you don’t discriminate, collecting unnecessary personal details can create privacy issues (and it can look bad if the process is later reviewed).
Once you hire someone, you’ll also want your documents and expectations clear from day one - usually starting with a properly tailored Employment Contract.
Common Illegal (Or High-Risk) Interview Questions - And What To Ask Instead
Below are examples of common questions that often cause problems. Some may be unlawful in practice, while others are “high-risk” because they can easily be linked to discrimination or privacy breaches.
The safest approach is simple: keep questions directly connected to the inherent requirements of the job.
1) Pregnancy, Family Plans And Caring Responsibilities
High-risk questions include:
- “Are you pregnant?”
- “Do you plan on having children soon?”
- “Do you have kids? Who looks after them?”
- “Will childcare be a problem for you?”
These can link to sex, pregnancy, and family status discrimination. Even if you’re asking because you’re worried about scheduling, it’s safer to focus on availability.
Safer alternatives:
- “This role requires work on Saturdays twice per month - can you meet that requirement?”
- “The standard hours are 8:30am–5:00pm. Are you able to work these hours consistently?”
- “Are there any commitments that would prevent you from meeting the rostered hours?” (asked consistently to all candidates)
2) Age
High-risk questions include:
- “How old are you?”
- “What year did you graduate?”
- “Are you close to retirement?”
Age is a protected ground, and age-related questions can look like you’re screening people out based on assumptions (energy levels, tech skills, “culture fit”, and so on).
Safer alternatives:
- “This role involves . Tell us about your experience with them.”
- “Are you legally entitled to work in New Zealand?”
- “This role requires lifting up to 20kg - are you able to safely perform this task with reasonable support?”
3) Religion And Cultural Practices
High-risk questions include:
- “What religion are you?”
- “Do you go to church/mosque/temple?”
- “Will your religious holidays affect your work?”
It’s fine to be accommodating as an employer, but in interviews you should avoid collecting religious information unless it’s genuinely relevant (which is rare outside certain faith-based organisations).
Safer alternatives:
- “The role requires availability on . Can you meet that?”
- “Are there any restrictions that would prevent you from working the required schedule?”
4) Disability, Medical Conditions And Mental Health
High-risk questions include:
- “Do you have a disability?”
- “Do you have anxiety/depression?”
- “How many sick days did you take last year?”
- “What medications are you on?”
Disability is a protected ground, and health information is particularly sensitive. You can ask about ability to perform the role, but be careful about asking for diagnoses or medical history.
Safer alternatives:
- “These are the core tasks of the role. Is there anything that would prevent you from performing them safely and effectively?”
- “Do you need any workplace adjustments to perform at your best?” (optional, and asked carefully)
If you’re considering drug testing for safety-sensitive roles, it’s important to have the right consent processes and documentation in place, such as a Drug Test Consent Form.
5) Relationship Status And Sexual Orientation
High-risk questions include:
- “Are you married?”
- “Do you have a partner?”
- “Are you gay/straight?”
- “Is that your maiden name?”
Even if it feels like harmless conversation, these questions aren’t usually relevant to job performance and can create a discrimination risk.
Safer alternatives:
- Stick to role-based questions about experience, communication, and availability.
- If you need identity verification for onboarding, handle it after an offer and in a consistent way.
6) Race, Ethnicity, Nationality And “Where Are You Really From?”
High-risk questions include:
- “Where are you from originally?”
- “What’s your ethnicity?”
- “Is English your first language?”
These can quickly become discriminatory (even if you didn’t mean them that way). The safest approach is to focus on work rights and the actual communication requirements of the role.
Safer alternatives:
- “Are you legally entitled to work in New Zealand?”
- “This role involves writing customer emails and preparing reports - can you tell us about your experience doing that?”
7) Political Opinions And Union Membership
High-risk questions include:
- “Who did you vote for?”
- “What are your political views?”
- “Are you in a union?”
Political opinion and employment status are protected grounds. These topics rarely have a legitimate connection to the inherent requirements of most roles.
Safer alternatives:
- Ask behavioural questions: “Tell us about a time you dealt with conflict at work.”
- Assess values through work scenarios, not personal ideology.
How To Run A Legally Safe Interview Process (Without Making It Awkward)
You don’t need to turn your interview into a courtroom. You just need a clear structure that keeps the conversation job-focused and consistent.
Use A Role-Based Interview Scorecard
Before you interview anyone, write down the inherent requirements of the role. For example:
- availability (days/hours)
- core skills and experience
- technical requirements
- physical or safety requirements (if relevant)
- communication requirements
- licences or certifications (if required)
Then score each candidate against those requirements. This makes your decision-making easier to defend if it’s ever questioned.
Ask The Same Core Questions Of Every Candidate
Consistency matters. You can still have natural conversation, but your “core” questions should be the same for everyone, in the same role.
This helps you avoid:
- unconscious bias creeping in
- candidates being assessed on different criteria
- “personal” questions being asked only to certain people
Be Careful With “Culture Fit” Language
“Culture fit” can be a genuine business concern - you want someone who works well in your environment.
But it can also become a proxy for discrimination if it’s really about someone’s age, background, family situation, or personality style.
Tip: Try framing this as “values fit” or “ways of working”, and make it measurable. For example:
- “This team gives and receives direct feedback weekly - how do you prefer to receive feedback?”
- “We work with tight deadlines and shifting priorities - tell us how you manage that.”
Take Notes The Right Way
Interview notes can become evidence later. Keep them factual and job-related.
Better notes look like: “Has 3 years’ customer service experience, answered scenario with clear process.”
Risky notes look like: “Too old”, “might get pregnant”, “accent hard to understand”, “seems anxious”.
Background checks can be legitimate - but they need to be relevant, proportionate, and handled fairly.
References
It’s common to check references, but you should:
- get the candidate’s consent
- check references consistently (don’t only check some candidates)
- ask role-related questions (performance, reliability, duties)
Police Checks And Other Screening
Police vetting might be appropriate where the role involves:
- working with children or vulnerable people
- handling large amounts of cash
- access to sensitive information
- security-sensitive environments
Don’t treat screening as a “default” step for every hire. If you can’t explain why you need it, that’s a sign you might be collecting unnecessary information.
Many employers do a quick online search. This can be risky if you end up seeing protected information (like religion, relationship status, pregnancy announcements, political opinions) and then make a hiring decision that appears linked to it.
If you choose to do social media checks, it’s wise to:
- do them at a consistent stage (e.g. finalists only)
- set a clear purpose (e.g. professional conduct risks, not personal life)
- document what you looked at and why
If your recruitment process involves collecting and storing applicant data (CVs, interview notes, ID documents), having a clear Privacy Policy (and internal handling process) helps you stay compliant and build trust.
What Happens If You Ask An Illegal Question (Or A Candidate Complains)?
If a candidate believes you discriminated against them, they may raise a complaint through agencies such as the Human Rights Commission, or pursue a personal grievance (depending on the situation and timing). Even if you ultimately did nothing wrong, responding to a complaint can take time, cost money, and distract you from running your business.
Common practical consequences include:
- Recruitment delays while you investigate what happened
- Damage to reputation (especially if the issue ends up online)
- Cost of legal advice and responding to claims or complaints
- Risk of compensation or settlement where a claim has merit
From a business owner’s perspective, the best approach is to reduce risk upfront by building a fair, consistent process - and ensuring your employment paperwork supports it.
That includes having the right workplace expectations documented. Depending on your business, you might also want policies that set boundaries around things like conflicts, confidentiality, and conduct (often bundled into a handbook), and well-drafted agreements for different worker types such as Contractors Agreement when you engage genuine contractors.
Key Takeaways
- Interview questions become “illegal” or high-risk when they relate to protected grounds (like age, disability, family status, religion, race, or sexual orientation) and aren’t genuinely relevant to the role.
- A good rule of thumb is to only ask questions that connect directly to the inherent requirements of the job - and to ask your core questions consistently across candidates.
- Avoid “small talk” questions about pregnancy, relationship status, religion, or medical history, even if your intentions are harmless - they can still create discrimination and privacy risk.
- If you need screening (references, police checks, drug testing), make sure it’s proportionate, role-relevant, and done with clear consent and a consistent process.
- Keep interview notes factual and job-related, and store applicant information securely in line with the Privacy Act 2020, supported by a clear Privacy Policy.
- Strong legal foundations matter from day one - using the right Employment Contract and worker agreements helps protect your business as you grow.
If you’d like help setting up a legally safe recruitment process, updating your employment documents, or getting your contracts sorted, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
