Employers: Make Sure You’re Avoiding These Illegal Interview Questions

October 13, 2021 Amanda Krebs

illegal interview questions

During the hiring process, it is critical that employers word their questions carefully, respectfully, and in compliance with the law. Many employers use illegal interview questions without the intention of being discriminatory, but instead to be conversational or to elicit information about how an employee works. However, poorly worded questions risk not only alienating a talented candidate, but also violating the law which could result in an investigation by the U.S. Equal Employment Opportunity Commission or other legal action.  As states crack down on employment discrimination, employers should be sure that they treat every candidate with respect and dignity.

Think carefully about why you are asking a specific question and how it’s being asked. Will the answer really tell you the most important thing you need to know, which is whether the candidate will be able to succeed in the role.

Below are some examples of illegal interview questions to avoid and some suggested alternatives that might give you a better idea of a candidate’s background and experience.

Gender

Avoid illegal interview questions about the candidate’s gender or questions that imply that gender will play a role in their job. This includes questions like:

  • Are you comfortable managing an all-male team?
  • Are you comfortable reporting to a female manager?
  • As a single mom, do you think you can balance caring for your children with your work responsibilities?

Instead, ask open-ended questions that will tell you whether the candidate can do the job:

  • Tell me about your previous management experience.
  • Tell me about a time where you had a disagreement at work, and how you handled it.

Race, Ethnicity, Citizenship Status, or Country of Origin

Avoid questions hinting at a candidate’s race, ethnicity, citizenship status or country of origin. While this may seem obvious, even seemingly innocent or conversational questions can run afoul of the law. This includes questions like:

  • Where are you from?
  • Where are your parents from?
  • Are you a US citizen?

Instead, focus on questions that will confirm that candidate can work for your company, such as:

  • Are you legally allowed to work in the United States?

Age

A candidate’s age is another seemingly harmless but potentially unlawful line of inquiry. Because age discrimination is a concern for both older and younger job seekers, avoid illegal interview questions like:

  • What year did you graduate high school?
  • What year were you born?

Instead, ask questions that will tell you if the candidate has the proper experience to perform well in this role:

  • What is your experience with Microsoft Excel?
  • Tell me about the experience you had at your internship.

Marital or Family Status

Avoid questions about marital or family status, because they risk discrimination against single parents and those planning to start a family. For example:

  • Are you pregnant or planning to have children in the future?
  • Have you made arrangements for childcare during work hours?
  • What does your spouse do for a living?

Instead, ask questions that will tell you if the candidate can stick to the schedule required by the job:

  • Do you have any commitments that might prevent you from working your assigned shifts?

Religion

Avoid asking any questions about religion—even for scheduling purposes. This may include questions like:

  • Will you need any personal time for religious holidays?
  • Do you attend church on Sundays?
  • Who is your rabbi?

Instead, ask questions that will tell you if the candidate can meet the requirement of the role:

  • Do you have any scheduling conflicts in the month of December?

Current Salary

While this question isn’t illegal everywhere, some jurisdictions (including New York City) have banned employers from asking questions about current or previous compensation—and other states are following suit. Avoid questions like:

  • What is your current salary?
  • What kind of benefits did you receive in your last job?

Instead, ask questions that will tell you and the candidate are aligned on compensation:

  • What are you looking for in terms of compensation for your next role?

COVID Vaccinations

It is permissible to ask a candidate if they are vaccinated for COVID-19, if that is a requirement for the job.

However, avoid questions that would unnecessarily elicit details about medical conditions or disabilities. The same comment applies if you think the question will unnecessarily create conflict:

  • What are your thoughts on the vaccine?
  • Have you had COVID in the past?

Instead, ask questions that will tell you if the candidate can perform the job safely:

  • This role falls within our mandatory vaccination policy – are you fully vaccinated?
  • Where applicable, you might consider asking, “For those that cannot or do not wish to be vaccinated, we offer weekly testing as an alternative – will that work for you?”

DISCLAIMER: The Execu|Search Group has made every attempt to ensure the accuracy and reliability of the information provided in this article. However, this information is provided for educational purposes only, and nothing on our website constitutes legal advice. We recommend consulting with your legal counsel to ensure your compliance with applicable law.

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