You'd think interviewing should only be nerve-wracking for the job seeker, not the question asker. But that’s not always the case. Many hiring managers are unaware of just how many “wrong” questions they can ask an applicant — and by wrong, we mean illegal. That’s right: There are a whole host of seemingly innocent questions that are actually very much off limits for supervisors to ask potential employees.
The good news is there are also many legal interview questions that can be used to get any touchy information needed to make smart hiring decisions. We'll discuss both areas below, as well as provide a list of illegal interview questions and their legal alternatives to help you avoid sticky situations.
What makes an interview question illegal is determined by the U.S. Equal Employment Opportunity Commission (EEOC) in the Title VII of the Civil Rights Act of 1964. Title VII states that it is illegal for employers to ask about a person's age, race, gender, national origin, religion, sexual orientation, disability status, and marital status in any pre-employment stage: online applications, surveys, interviews, etc.
The law also makes it illegal to ask questions regarding pregnancy status, if applicants have children, questions regarding arrest records, or military discharge status. These rules apply to everyone you're thinking of bringing into your company, including temporary workers, interns, part-time and contract workers, and full-time employees.
The guidelines seem straightforward enough, don't ask questions like, "Are you married?" or "What religion do you practice?" But there are some surprising loopholes that you may not think of as illegal when creating a list of interview questions.
Some of these things are important to know, however, and need to be addressed before a job offer can be made. For example, if a job at a nursing home requires someone to work Saturday evenings, an Orthodox Jew would be unable to meet the job's requirements due to the Sabbath. Or if a factory job requires workers to lift heavy loads throughout the day and a person has a disability, they similarly would be unsuited for the job.
So how does someone go about getting this “forbidden” information without asking?
| Examples of Illegal Interview Questions | Why They are Illegal |
|---|---|
| What organizations, clubs, or societies do you belong to? | The applicant's answer could indicate race, sex, national origin, disability status, age, religion, color, or ancestry |
| Please include a photo ID with your application. | It could indicate race, age, or other factors |
| Have you had any recent health problems? | Medical information can't be asked about until you offer someone a job, per EEOC regulations |
| ConDo you have any disabilities that would affect your work? | It's illegal to ask about someone's disability status |
| Have you ever been arrested? | You need to give an applicant written notice that a background check into his or her criminal record will be conducted, according to the Fair Credit Reporting Act |
| Tell me about your family. | The answer could indicate race, national origin, age, color, ancestry, marital status, sexual orientation, or if the applicant has children |
- Here's a list of legal interview questions that can be used to get at the information you need:
- What are the hours you're available to work?
- Do you have any responsibilities that may interfere with your ability to travel (or a different, specific job requirement)?
- How many languages do you speak fluently?
- How many languages do you speak fluently?
- Are you available to work on Saturday evenings or Sundays?
- Have you ever been convicted of a crime?
- Can you perform the job's essential functions with or without reasonable accommodation?
Although it may seem like there's a lot you can't ask potential employees, you can still gather quite a bit of information about them. All sorts of background information is still fair game during the hiring process: employment history, education, criminal record, use of social media, etc. And unless you're asking for medical or genetic information, it's also legal to require background checks.
It's important to know, though, that when asking about someone's background, the same laws still apply. You can't treat someone differently due to race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age. It is also illegal to ask for extra background information because someone is a certain race or ethnicity.
That said, if you do decide to run background checks on potential employees, there are two things to keep in mind. First, you'll need to get written permission from the person before getting the report.
Second, if you decide you might not hire someone based on something in the report, you are required to give the person a copy of the report and a `notice of rights` that tells them how to contact the company that made the report. This is because background reports are sometimes inaccurate and, according to the EEOC, the applicant in question should be given a chance to correct the error. If the applicant sees a mistake in the report, he or she can ask the background reporting company to fix it and send a copy of the corrected report to you. You can decide how to proceed from there.
You can learn more about the type of information employers can obtain through a background check here.
Before making any hiring decisions, whether for interns or full-time employees, it's a good idea to familiarize yourself with the above information as well as the other areas covered by the EEOC's Prohibited Employment Policies/Practices page. There are (unfortunately) many ways in which discrimination can accidentally take place, but by preparing for interviews and using the above list of legal questions — as well as having documents requesting background checks ready to go — interviews can be easy, smooth, and perhaps even enjoyable.
