Even if you didn't mean it, illegal interview questions can land you in hot water. Read on.
Picture this: You’re interviewing a candidate and feel really, really feeling positive about bringing them on. You two are just clicking. You’ve asked the hard-hitting questions, and they’ve knocked every one of them out of the park. You want this person on your team. Bad. Eager to put the candidate at ease appear more friendly yourself, you ask, “So, are you married?” And just like that, you’ve crossed into illegal territory.
Surprised? You’re good company. According to a 2015 study from CareerBuilder, 20% of hiring managers have asked a question in a job interview and later found out it was illegal to ask it. Each time you do it, you put yourself and your company at risk for legal action, as the job candidates could claim that certain questions were used to discriminate against them -- even if your intentions were harmless.
Are you guilty of asking any of these seemingly innocent illegal interview questions?
I’ve never met anyone with your name. What’s the origin?
It’s natural to be curious about someone’s background, but asking this question in an interview can land you in legal trouble if the candidate reveals their ethnic or religious background in answering it and later doesn’t get the job. The candidate could then assert that they were dismissed from consideration based on their religious or ethnic background.
The Equal Employment Opportunity Commission (EEOC) forbids questions that ask about US residency, cultural status, or ethnic background. As with the question above, questions like, “Were your parents born here?” or “What’s your ethnicity?” can lead to legal trouble.
What you can ask:
- “Are you authorized to work in the US?” (this will allow you to determine if you would need to sponsor the job applicant).
- “What languages do you speak, read, and write fluently?”
- “Are you legally eligible to work in the United States?”
- “Can you show proof of citizenship/visa/alien registration if we decide to hire you?”
- “Are you known by any other names?”
I see you’re pregnant. Congratulations! When are you due?
It may be obvious that a candidate is pregnant, but it’s never acceptable to ask any questions about the subject. Period. Questions involving pregnancy violate the EEOC’s Pregnancy Discrimination Act (PDA), and you could get sued if a candidate feels she’s been discriminated against by not being offered a job based on her pregnancy. Unless the candidate mentions her pregnancy, don’t ask about it.
Similarly, avoid offering up any information about your company’s maternity policy unless she specifically asks for it. Only after she’s hired and volunteers the fact that she’s pregnant can you talk about your maternity leave policy.
What you can ask:
- “Are you able to perform all the job functions as I’ve described them?”
- “Do you have any upcoming commitments that would interfere with the schedule we’ve discussed?”
I see you went to State. Were you in a fraternity? What year did you graduate?
Any questions that lead the candidate to reveal their age should be avoided. The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the EEOC.
Avoid all questions about non-professional organizations (fraternities, sororities, health or country clubs, etc.) that could be seen as a proxy question about race, age, sex, economic status, and so on.
What you can ask:
- “Are you a member of any professional organizations now?”
- “What skills/subjects learned in college would benefit you in this position?”
Nice ring. When’s the big day?
Even an innocent conversation starter like this that would be perfectly appropriate in a social setting is not in an interview. That’s because a candidate could accuse you of marital status discrimination prohibited by the EEOC. So don’t ask it during an interview.
What you can ask: Nothing. If the person volunteers that they just got married or will soon be married, feel free to say congratulations, but then move on with no follow-up questions.
What does your husband/wife do?
A male candidate might say, “I just got married!” and your follow-up question about his wife could spell trouble if he married a man. The EEOC also outlaws discrimination in hiring on the basis of sex, including sexual orientation or gender, so questions like this could get you in legal trouble. Regardless, this question doesn’t speak to whether or not this person will be a good employee, so just skip it.
In general, avoid follow-up that would further reveal a candidate’s personal life or minority status.
What you can ask: “We’d like to check your references. Have you worked under another name?”
Do you have kids?
Asking about family status also violates the EEOC because it’s seen as discriminatory. So while it’s understandable to be concerned about a candidate’s ability to work specific hours, you can’t ask if their children are the reason they won’t be able to do it.
What you can ask:
- “Do you have any limits on the hours you’re available to work?”
- “Are you available to work overtime?”
- “Can you make 10 interrupted sales calls per day?”
- “Can you travel when necessary?”
Where are you from?
Where a person lives or has lived reveals a lot about their economic background, so skip any questions that would reveal it.
What you can ask: Nothing -- unless you’ve reached the part of the interview process where a job has been offered and is pending a clear credit check. At that point, you can ask their current address, how long they’ve been there, and what previous addresses they’ve used.
What are you doing for the holidays?
This question, as innocent as it may seem, intrudes on the candidate’s personal beliefs and is dangerously close to EEOC prohibited questions about religion. You simply cannot pry into someone’s religious background and use that information to determine their worthiness to do the job, even if you’re concerned that time out for religious activities could interfere with job performance. Again, avoid any question involving race, sex, gender, religion, or family.
(Note that it’s a good idea to avoid such questions even of current employees. Workplace discrimination laws (for promotions, termination, etc.) protect them, too.
What you can ask: “Are there any days or times when you cannot work?” Just make sure you ask this of all candidates, not just ones you think might have religious conflicts.
Any disabilities or work restrictions?
This question can suggest discrimination based on a perceived physicality. The Americans with Disabilities Act (ADA) protects people with disabilities from discrimination as long as they can perform a job with reasonable accommodation.
What you can ask:
- “Can you stand for 7 hours per day?”
- “Are you able to lift 25 lbs on a regular basis?”
Have you ever been arrested?
In some states, you can ask about convictions, but not about arrest records. But you’re risking an EEOC violation if you discriminate against individuals in a protected class who may be over-represented in the criminal justice system, especially if their criminal background has no relevance to the job duties.
According to the law, you are innocent (even if you’ve been detained by the police) unless you’ve been convicted of a crime. So before asking any questions about convictions, make sure you check with your state employment agency.
What you can ask:
- “Have you ever been disciplined for violating a company policy?”
- “Do we have your permission to run a pre-employment background check?”
Remember, what makes a job interview question illegal is its potential for employment discrimination based on the answer. Most illegal questions evolve from small talk and are questions we tend to ask people when meeting them for the first time. But, as an employer, you must be careful. Employers with at least 15 employees are subject to federal laws prohibiting discrimination based on a variety of characteristics, including race, color, national origin, sex, gender identity, sexual orientation, age, disability, religion, political views and family status. Don’t be caught unaware.
