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How to avoid illegal interview questions

How to avoid illegal interview questions

You’ve separated the star candidates from that imposing pile of resumes, and now it’s time to get down to brass tacks. To learn more, you’ll want to ask them about their work habits, past challenges, and whether they go to church every Sunday. Okay, definitely do not ask that last question.

Why not? Maybe you just need to know whether they’d be available when you need them, but a candidate’s religious practices are none of your business. You can, however, ask whether they can regularly work on Sundays. See the difference?

Certain interview questions are off-limits because they open the door to allegations of discrimination, even if that wasn’t your intention. It’s also important to make sure your job posting doesn’t ask illegal questions or indicate any preferences that may run afoul of the law.

There are countless ways in which an employer might accidentally ask an illegal interview question. As a hiring manager, it’s important for you to know where to draw the line.

What makes an interview question illegal?

Illegal interview questions are those that pry into an applicant’s protected status or privacy rights. For example, workers over the age of 40 are protected by age discrimination law. So you can’t ask an applicant’s age, even if their appearance or the graduation date on their resume gives it away. You also may not make comments or take notes indicating an applicant’s general or estimated age.

If you slip up and ask an illegal question, you expose yourself to possible legal action if an applicant has reason to believe your question was the basis for a discriminatory hiring decision. At that point or, even better, before you get to that point, it’s vital to reach out to your corporate counsel for guidance.

Applicants sometimes volunteer certain information (whether they’re married or have kids, for example) that you can’t directly request. If you didn’t ask for those disclosures, then don’t sweat it. Still, you’ll want to avoid even the appearance of such information being used as part of your hiring decision.

Illegal interview questions at a glance

Some state and local jurisdictions provide additional prohibitions on interview questions that aren’t necessarily restricted under federal law. However, the following interview questions most likely would be illegal in every state (in some cases, whether an interview question is illegal or not can depend on the size of the employer and other factors):

  • Do you have a disability? The Americans with Disabilities Act (ADA) provides protections for disabled employees and job applicants. If an applicant has an obvious disability (i.e., they’re in a wheelchair) or has disclosed a disability to you, you may inquire about any reasonable accommodations they may need in order to do the job.
  • What’s your age? Workers over 40 are protected by the Age Discrimination in Employment Act (ADEA), so asking for their age is like asking for a lawsuit. You can, however, ask whether a job candidate is 18 or older, since their status as a legal adult may be an important legal factor in the job.
  • Are you now, or have you ever been, in a union? While you can tell an applicant about the union status of your workplace, you can’t ask about their current or past affiliation with a union.
  • Do you have kids? Whether the applicant has kids is not relevant to their candidacy and could be used to discriminate against them. But you may ask about children after they’re hired for insurance purposes.
  • Can you tell us about your nearest relative or next of kin? While employers may ask for this information once an applicant is hired (for emergency contact purposes, for example), such questions also should be off-limits during the interview.
  • What’s your heritage? Are you a U.S. citizen? You may ask whether an applicant is legally eligible to work in the United States (they may have a temporary visa, a green card, or citizenship), but direct questions about their national origin or immigration status are a no-no.
  • What’s your racial identity? You’ll want to avoid any questions that specify a person’s ethnic or racial identity.
  • Have you ever been arrested? If you need your new hire to pass a security clearance, then you can inform them about this requirement, but it’s best to avoid specifics.
  • Were you dishonorably discharged? You may ask whether an applicant is a veteran or whether they have any job-related experience in the military. But you shouldn’t ask about their discharge status.
  • Have you ever filed for bankruptcy? You can’t ask about bankruptcy filings, loans, wage attachments, or financial status. But you can ask for certain financial information related to benefits of compensation after they’re hired.
  • Are you married? While it’s irrelevant and illegal to ask this during the interview, you may ask about dependants for insurance purposes after they’re hired.

There are other potentially illegal interview questions that may pertain to specific jobs and situations. For instance, you can’t ask whether an applicant has any speeding tickets unless the job requires a clean driving record (such as a commercial trucker).

Ready to ask your candidates revealing, but legal, interview questions?

You want to learn as much as you can about your top candidates before you make that all-important decision. But what you don’t want to do is expose yourself (and your company) to a lawsuit. That’s why it’s important to realize what constitutes illegal interview questions. However, the first step is knowing how to find the right pool of candidates. Lighten your load by subscribing to Monster Hiring Solutions, where you’ll get expert hiring tips right to your inbox.


Legal disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.