Can standard or routine questions be discriminatory?
A routine question about disability, such as “have you ever had a mental illness?”, in an application form or selection process, may have the effect of excluding or disadvantaging applicants with a disability. If a question has this effect it may be unlawful indirect discrimination.Indirect discrimination occurs where an unreasonable condition or requirement is imposed which disproportionately disadvantages people with a disability and with which the person with a disability concerned cannot or does not comply. The reference to failure or inability to comply with a requirement does not mean that a person can only make a claim of discrimination if he or she refuses to answer a question or fail to answer truthfully. If people who answer “yes” or would truthfully answer “yes” to a question regarding disability are in fact excluded or disadvantaged, a condition or requirement exists in practice of being able to answer “no”.
