So You’re Conducting a Job Interview. Good For You. Was That Last Question Actually Legal To Ask? – Get a Second Take

July 17, 2018

7 min read

We live in litigious times, and it would be a shame to find yourself on the wrong side of a lawsuit for a question that, if asked on the street, would be perfectly harmless. But a job interview is not the street, and recruiters need to be aware not only of what’s acceptable, but government mandated.

You need to hire someone to do a job. You ask questions to evaluate whether they can do the job. You offer them the job or you don’t. Everyone knows how this goes.

Trouble arises, however, when things get too personal or intrusive. Asking what you think might be a perfectly reasonable question can be illegal, and crossing that line isn’t always so clear. For example, one may assume the graveyard shift at a supermarket is best suited to a single person with no children, but instead of asking, presumptuously about the candidate’s family status, simply ask if they are available to work nights. See? It’s not so bad once you get used to it.

Sometimes it may seem silly to stop yourself from easing into an interview with “How old are you?” or “What sorority did you belong to?” but the most important thing to remember is that such interview questions are actually proven to encourage bias. Thus not asking them promotes a more fair, and generally accurate, matching of a candidate’s skills to a job.

Also, be aware that today’s candidate is a savvy specimen, and even if they don’t point out your error in asking an illegal interview question (they may even choose to answer it) the fact that you made an inappropriate inquiry may sour a candidate towards your company, or even motivate them to report your business to the Equal Employment Opportunity Commission (EEOC).

Recruiters and HR are usually well versed in their state’s employment law, but hiring managers are more of a wild card as their expertise lie elsewhere. Though this shouldn’t be taken as legal advice, the following most common illegal interview questions are a good place to start when educating your team on what’s ok and what isn’t.

How long would your commute be? Instead ask, “Can you be at work by 9?” – The definition of a reasonable commute time varies by candidate so let them be the judge.
Do you belong to any clubs or organizations? Instead ask, “Do you belong to any professional organizations we should know about?” – that way you don’t unintentionally bias yourself towards/against a candidate based on irrelevant information.
Are you married? Instead ask, “Can you relocate? Are you able to travel? Can you be on call during nights? “Are you aware of the dangers of this job?” – Think about what you actually want to find out from this question and make the inquiry more specific.
Do you have kids? As with the above question don’t make assumptions about a person’s availability or ability to perform job responsibilities based on family status, simply ask what you need to know
Where are you from? Instead ask, “What is your current address?” or “do you have permission to work in the US?” – This is a natural question in informal settings, but for the purposes of assessing a person’s ability to do a job it isn’t so relevant and may lead to discrimination or favoritism.
Who do you live with? Skip this one, you probably don’t need to know, unless you are vetting someone for government service and this question could force someone to reveal their family status and/or sexual orientation.
How tall are you? Instead ask, “You must stock shelves as high as six feet, are you able to do this?” – Again, it’s about naming duties rather than making assumptions of incompetence based on characteristics, in this case physical.
How old are you? Instead, ask “are you at least the minimum age to do this job?” – on the other side of the coin if you are worried a person is too old to perform the duties required of the job ask about the duties specifically eg “can carry items weighing up to 50 lbs?”

Remember, it’s not just wordplay, it’s about asking a better question that evaluates the candidate fairly. (US Edition)

Here are some more common topics wherein illegal interview questions arise:

Financial history

Limited exceptions for certain financial positions. Ability to check credit varies by state and region. Even in regions permitting credit checks, a business can be reported if the credit checks seem to disproportionately disqualify a certain group such as women or people of color.

Illegal

Have you ever declared bankruptcy?
Do You have a bank account?
Are you in debt?

Legal

Credit checks in some states.

Medical Information

Medical examinations are permitted if it is necessary for the performance of job responsibilities and a drug test.

Illegal

Do you have any addictions?
Do you take prescription drugs?
Have you been to rehab?
Do you have any disabilities or medical conditions?

Legal

Are you currently taking illegal substances?
Would you be able to perform this job with (or without) reasonable accommodation?
Do you have any conditions that would bar you from doing these tasks?

Arrest record

Arrest records and conviction inquiries are covered by state rather than federal law, so be sure to tailor your inquiries according to your location.

Illegal

Have you ever been arrested?
Do you have an arrest record?

Legal

Have you been convicted of a crime?

Religious Affiliation or Beliefs

Religious institutions may choose to favor a candidate with the same religious leanings if spirituality is relevant to the job, for example, a teacher at a Catholic school, but not a janitor.

Illegal

What religion do you practice?

Legal

When are you available to work?

Citizenship and Visa Status

Illegal

What’s your country of origin?
Are you a citizen?
Is English your first language?
Where are your parents from?
How do you know Spanish?

Legal

Do you have permission to work in the USA?
Can you read/write/speak English? (And then, only if integral to the performance of the job).

Marital/Family Status

After hiring you can ask number and age of children for insurance purposes.

Illegal

Do you have children or plan on having children?
Who cares for your children
Are you pregnant or plan on becoming pregnant?
Are you married?

Legal

Are you able to travel or relocate?
Can you be on call?
Will these hours work for you?

Living Arrangements

Illegal

Do you own your home?
Who do you live with?
How are you related to the people you live with?
How far would you have to commute?

Legal

What is your current address?
How long have you resided at your current address?
What was your previous address?
How long did you reside at your previous address?
Can you be in the office by 9?

Past wages

Varies by state and even city so check codes for your area. Note that women are historically paid less for the same jobs as men so basing offers on former wages could encourage bias.

Gender/Sexual Orientation/Race

You can collect gender/sexual orientation/race info from candidates, but it can’t have an effect on the hiring process except through affirmative action processes. The information can be used for government reporting, affirmative action, or diversity analytics.