When you're preparing to interview a job candidate, you probably have a list of questions you want to ask that person. But it's equally important to know what questions you shouldn't be asking a potential employee, in order to avoid legal trouble.
According to a 2015 study from CareerBuilder, 20 percent of hiring managers have asked a question in a job interview, only to find out later that it was illegal to ask. For the protection of both the interviewer and interviewee, employers need to understand what they do and don't have a legal right to question job candidates about, said Rosemary Haefner, chief human resources officer at CareerBuilder.
"Though their intentions may be harmless, hiring managers could unknowingly be putting themselves at risk for legal action, as a job candidate could argue that certain questions were used to discriminate against him or her," Haefner said in a statement.
What makes a job interview question illegal is its potential for employer discrimination based on the answer. Federal laws under Title VII of the Civil Rights Act of 1964 and later amendments prohibit discrimination against a job applicant or employee based on a variety of characteristics, including race, color, national origin, sex, gender identity, sexual orientation, age, disability, religion, political views and family status. Employers with at least 15 employees are subject to these laws, which are enforced by the U.S. Equal Employment Opportunity Commission (EEOC). [See Related Story: Should You Check a Job Applicant's Credit History?]
"Essentially, you are unable to ask questions that could reveal information that can lead to bias in hiring," said Reshae Mora, human resources specialist at talent management company Alexander Mann Solutions. "[Asking about] someone's personal affiliations — social organizations, community organizations, religious groups — could lead to bias."
In the study, CareerBuilder surveyed more than 2,100 hiring and HR managers, to identify some of the most common questions employers didn't know were illegal. Here are some of the common ones CareerBuilder found:
- What is your religious affiliation?
- Are you pregnant?
- What is your political affiliation?
- What is your race, color or ethnicity?
- How old are you?
- Are you disabled?
- Are you married?
- Do you have children or plan to?
- Are you in debt?
- Do you socially drink or smoke?
Sometimes, the legality of the question depends on how the interviewer asks it, according to CareerBuilder. For example, when discussing candidates' retirement plans, it's OK to ask what their long-term goals are, but it's not acceptable to ask when they plan to retire.
According to CareerBuilder, other questions hiring managers need to phrase carefully include the following:
- Where do you live? Asking candidates where they live is illegal because it could be interpreted as a way to discriminate based on their location. The better way to phrase the question is to ask candidates if they're willing to relocate.
- What was the nature of your military discharge? Asking why a military veteran was discharged is illegal. However, employers can ask what type of education, training or work experience a candidate received while in the military.
- Are you a U.S. citizen? Although you can ask if a candidate is legally eligible for employment in the U.S., it's illegal to ask about citizenship or national origin.
What if you accidentally learn protected information?
Even if you don't outright ask any illegal interview questions, you still need to be careful about a candidate who voluntarily offers information related to an EEOC protected status. Mora noted that candidates may reveal such information in the first few minutes of an interview, when hiring managers typically make small talk to help the candidate feel comfortable. For example, you may think a common question like "How was your weekend?" would be innocuous, but it could lead to answers that reveal protected information.
"This can easily slip into a conversation of talking about one's spouse or kids," Mora told Business News Daily. "While this can seem harmless at a surface level, it could lead to a case of discrimination, as it indirectly uncovers a bias of [whether] the candidate can invest the expected amount of time for this role in order to be successful."
You might also learn some facts about a candidate during your pre-interview research. For instance, maybe you look them up on social media, and they post about their spouse/children, hometown or organizations they belong to. While it's technically legal to research candidates' public social profiles, it's important not to use any information you learn as a deciding factor in hiring them, and you definitely shouldn't ask any questions related to any protected information you uncover.
In a Monster.com blog post, contributing writer Louise Kursmark said that carefully planned questions and a structured interview process should help reduce the risk of discovering this type of information. However, if a candidate does volunteer any facts you shouldn't have learned, the best thing to do is not make a note of it or pursue any further questions about it.
"You can't erase the information from your memory, but you can eliminate it as a discussion point and selection factor," Kursmark wrote.
Additional reporting by Chad Brooks and Dave Mielach.