Illegal Interview Questions: Are You Guilty?

Oftentimes employers assign managers to interview potential employment candidates without considering the consequences of their asking illegal interview questions.

An illegal question is one that seeks information the employer is not entitled to
request and/or not entitled to use as a basis for job decisions. Most illegal questions cross the line by inquiring about protected characteristics, such as age, disability, race or religion, which could be used to discriminate against the applicant.

Ask only job-related questions.

It is unlawful under federal law not to hire candidates because of their race, color, sex (including certain protections for lesbian, gay, bisexual, and transgender (LGBT) individuals), religion, national origin, age, disability, genetic information or military service. Some states also prohibit discrimination based upon marital status and other factors. Employers should avoid questions and conversation that could lead to discussion of these prohibited areas.

Sample Illegal Questions:

Are you married?
What is your maiden name?

Acceptable Alternative: Have you ever been known or gone by a different name?

Note: This question is allowable only if the information is needed to verify the applicant’s qualifications.

Have you ever been arrested?
Have you ever spent a night in jail?
Have you ever been caught driving drunk?

Note: This is a delicate area. Although there is no federal law that clearly prohibits an employer from asking about arrest and conviction records, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way. A number of state laws also limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer’s use of conviction data in making an employment decision. In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.

Where were you born?
Where were your parents born?
How long has your family been in the U.S.?
That’s an unusual name – what does it mean?

Acceptable Alternative: Are you legally authorized to work in the United States?
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Note: Both Title VII and the law in most states prohibit discrimination based upon national origin. You cannot ask any question that is related to an applicant’s ethnic, racial, or national origin.

How long have you been at your current address?
Do you own, rent, or live with relatives?

Acceptable alternative: What is your current address and phone number? Do you have an alternative address and/or phone number where you can be reached?

Note: Any question regarding a foreign address might be considered discriminatory.

How old are you?
What year were you born?
I went to high school in Norwalk, too—what year did you graduate?

Note: Employers are prohibited under federal law from discriminating against employees age 40 and over. Some states protect younger employees from age discrimination as well. You might inquire, if necessary, about the number of years of experience the employee has doing a particular job or working in a particular field.

This job requires short notice overtime (or travel, etc.), will this cause any babysitting problems for you?
What are your child care arrangements?

Acceptable Alternative: (if asked of all applicants and a specific scheduling or travel requirement is a business necessity): This job requires short notice overtime/travel/etc. Will you be able to meet this requirement? Or, would you be able to work a 9:00 a.m. to 6:00 p.m. schedule?

Note: You may not ask any questions about the names, ages, addresses, etc., of the applicant’s children, spouse, or relatives. After hiring, you may ask only for information relevant to the job, such as information needed for health insurance, etc. Historically, women have been discriminated against in “sex plus” discrimination, where child care and similar matters have been used to discriminate.

Do You have medical problems (disabilities, etc.)?
Do you have any pre-existing health conditions?
Are you on any medication?

Acceptable Alternative: (if asked of all applicants): Can you perform the essential functions of the job, with or without reasonable accommodation?

Other question to avoid:

• Are you planning a family?
• Do you have children?
• Have you made child care arrangements if you get this job?
• Have you ever been turned down for a job because of physical reasons?
• Do you have AIDS or any other infectious disease?
• Are you gay?
• What is your race?
• What color is your hair (eyes, skin)?
• Have you ever brought a lawsuit against an employer?
• Have you ever filed for Workers’ Compensation?
• Have you ever been sexually harassed?
• Are you married?
• How much do you weigh?