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Illegal Job Interview Questions to Avoid

Illegal Job Interview Questions to Avoid
Credit: baranq/Shutterstock

Conducting an employment interview is stressful for every party involved. You are looking for the best possible new team member, and the person being interviewed is hoping to make the best possible first impression.

In today's competitive environment, the quality of your team is paramount to your success. In your enthusiasm to find the right person, you may not think about what you should and should not ask. The Equal Employment Opportunity Act (EEOA) prohibits you from asking questions that might lead to discrimination, or the appearance of discrimination.

Bottom line: you cannot ask questions that in any way relate to a candidate's:

  • Age
  • Race
  • Ethnicity
  • Color
  • Gender
  • Sex
  • Sexual orientation or gender identity
  • Country of origin
  • Birthplace
  • Religion
  • Disability
  • Marital status
  • Family status
  • Pregnancy
  • Salary history (in some states)

This sounds easy, but can be hard, especially if you develop an easy rapport with the candidate during the interview. It is natural when getting to know someone to ask about family, friends, education or other off-limits topics, but that can get you into trouble during an interview. [Interested in background check services? Check out our best picks.]

When determining what questions to ask your candidates, consider what you need to know to make an educated hiring decision.

"It's important to ask the same questions to every candidate you are interviewing for a particular position," said Shobi Nunemacher, president of Referral Staffing Solutions. "You may have a different set of questions for different positions but when you are comparing two or more candidates for one opening, keep your questions the same."

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There are a variety of ways that you might think are harmless than can actually lead to legal problems. It's important to know what you can and can't say.

A great and common example that may not have occurred to you as a problem: "What is your national origin?" Or, more simply put, "Where are you from?" You may interview a candidate with a unique accent or someone that has mentioned they have worked in other countries and curiosity could get the best of you. And it seems perfectly harmless small talk. But legally, it's not.

"Hold back the urge to ask where they are from," advises Nunemacher. "Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone on the basis of national origin. If you ask, you could be accused of discriminating against them."

You can ask of they are eligible to work in the United States and if they are able to provide documentation of that. Companies now require all employees to fill out an I-9 form to confirm that new hires are legally eligible for work in the U.S.

Employers cannot ask if English is a candidate's first language either. If it's relevant to a position, you can ask what other languages a candidate might be able to read, speak or write fluently.

More than just that, you cannot ask if you rent or own your home, who you live with or how you know the people you live with. You can, however, ask how long a candidate has lived at their current address.

Another seemingly innocuous question might be "What is your maiden name?" Employers are not allowed to discriminate on the basis of gender or marital status.

Instead, you can ask, "Have you ever worked under another name?" Be sure that any question you ask remains the same for all candidates. The purpose of such a question might be to find out if they have a reputation, published works or accolades under another name that you might have heard of previously – not to find out if they are or were married.

"I recently interviewed a young man that is in the process of changing his name," stated Nunemacher. "This question will be a catch-all of any name changes for any candidate, regardless of gender."

Another seemingly innocent question is "How old are you?" Nor can you ask the more subtle, "What year did you graduate from high school?" Or "When did you first start working?" The Age Discrimination in Employment Act of 1967 protects people who are 40 or older from discrimination because of age.

If you do have a minimum age requirement and want to be sure your candidate is eligible, Nunemacher says you can ask, "Are you over the age of 18?" or whatever the minimum age requirement is. For instance, if you're hiring a bartender or waiter who will be serving alcohol, 37 states and Washington D.C. all require adults be at least 18 years old. Three other states require a person to be more than 21 years old and one state has an age requirement of 17.

Another question that can get you as an employer into trouble is "Do you have children," or, "Do you plan to have a family?" These questions historically been used to maintain a gender imbalance in the workforce, leading some employers not to hire women strictly on the assumption that they may, someday, take maternity leave or need time off to care for a sick child. It's illegal either way. 

"You cannot ask a candidate if they are planning a family, if they are pregnant or about their childcare arrangements," said Jackie Burkhardt, a human resources professional based in Wisconsin.  "This is an illegal interview question because it reveals personal information that is not allowed to be used by employers to make hiring decisions."

Instead, she advises to ask questions that are relevant to the job description and requirements.

Pregnancy is considered eligible for disability pay, which is another reason you can't ask about a candidate's status. But other disabilities are just as protected. For instance, you cannot ask, "Have you ever filed a workers compensation claim?" or, "Do you have a disability?"

Many positions may have lifting or other physical ability requirements. While you need to know the candidate is capable of performing the requirements, you cannot ask, "How is your health?"

"It's illegal for employers to ask an applicant if they are in good health or if they have had any past illnesses or operations," said Burkhardt. You are not allowed to ask about their height, weight or any details regarding any physical or mental limitations. 

Something that might not occur to everyone; you can't ask if a candidate drinks socially or has ever used illegal drugs. If a person is a recovering alcoholic or other type of addict, for instance, their treatment would be protected under the Americans with Disabilities Act of 1990. Or, if they avoid alcohol for religious reasons, you could face a charge of religious discrimination.

"An employer can, however, ask if the applicant is able to perform the essential functions of this job with or without reasonable accommodations," she continued.

In those instances, describe the physical requirements, even if they were listed in the ad or job description. You can ask, "Are you able to execute the necessary job requirements of this position, and perform them well and safely?" That is a reasonable and legal question.

Women are paid 79 cents for every dollar that men make, according to the United States Census Bureau. Black and Hispanic women earn even less than that. Federal law already technically prohibits gender-based pay discrimination, but it's a difficult thing to prove. So, some states have taken a step to stop this discrimination at the job interview level.

California, Delaware, Massachusetts, Oregon and Puerto Rico have all made some salary-related interview questions illegal. And in New Orleans, New York City, Philadelphia and Pittsburgh each have similar laws on the books now. While it may not apply in your city or state yet, it's a safest to just avoid questions like "What is your current salary?"

Instead, determine the salary for any given position up front. During the interview, make that salary range known and confirm that the candidate is still interested in the position given those parameters. The idea is that this will help ensure that women and minorities who have a history of being paid less do not see that cycle perpetuated by employers who would then adjust a position's salary down to save a few pennies.

While not illegal in all states, or explicitly illegal, there are some other questions that could land your company in hot water:

  • "Have you ever been arrested?" (This is only relevant if a candidate has been convicted, and if that arrest and/or conviction would have actual bearing on the role that person would play.) This has been seen, in some cases, to lead to racial discrimination and being arrested does not mean guilty of anything.
  • "Can you work weekends or nights?" This can be seen as a question of religious observance or a proxy way of asking about family status.
  • "Do you have a bank account?" This is only fair to ask if you're sure it's permitted under the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.

Of course, you want to find the right skills, personality, abilities and knowledge to join your team. But there is a minefield of questions you'll want to avoid when performing a job interview. In fact, 20 percent of hiring and human resources managers have admitted to asking illegal questions, according to a Harris Poll of 2,000 such employers. Don't put your company at such risk by following these guidelines:

  • Focus interview questions relevant to the requirements of the job and determine if the candidate meets the criteria for that position. 
  • Be consistent with interview process. Create a set list of questions before the first interview and stick to the script.
  • Don't ask anything too personal.
  • Understand what is legal and illegal to ask in an interview.
Marci Martin

With an Associate's Degree in Business Management and nearly twenty years in senior management positions, Marci brings a real life perspective to her articles about business and leadership. She began freelancing in 2012 and became a contributing writer for Business News Daily in 2015.