Are You Asking a Candidate “Illegal” Questions in the Job Interview?

Finding the right candidate for the job can be a challenge. The traditional interview is often the best way to get to know the applicant and determine whether the person would be a good fit for the job. But state and federal laws limit what kinds of questions you should ask when vetting a potential new hire. Here are some of the most common questions that should be on your “do not ask” list, some legally compliant alternatives, and a few tips for making sure your hiring process stays on the right side of the line.

Why Employers Should Care About the Questions They Ask

Generally, not many laws dictate what questions you can or can’t ask in interviews, though there are some. For example, the ADA specifically prohibits asking a potential candidate a disability-related question in the interview. Even so, employers should care about the questions they ask in an interview because asking the “wrong” questions may provide fodder for a disgruntled candidate to file an employment discrimination lawsuit.

It is illegal to not hire someone because of protected status. At the federal level, this includes race, color, national origin, sex, disability, age (over 40), religion, and pregnancy. Colorado is similar, but adds sexual orientation, creed, and ancestry.

When you ask questions that elicit information about a person’s pregnancy status, for example, it provides you with information to make the hiring decision. Say a candidate is pregnant. While you might not (and hopefully don’t) rely on that to reach your decision, the fact that you asked about her pregnancy makes it more likely that a candidate who is not hired can come back and point to that as the reason she did not get the job.

For some employers, like churches and other religious organizations, questions about religion are fair game. But even these employers may need to worry about asking questions that implicate other categories.

Common Interview Questions That Should Be Off-Limits

Q: Are you a U.S. citizen?

Asking whether someone is a U.S. citizen may be interpreted as evidence of national origin discrimination. This question is asked all the time, however, because employers think they need to know this information in order to be sure they are not employing an authorized worker. For some positions, this may be a legitimate requirement. But for most, what an employer really needs to know is that the person is authorized to work in the United States. Ask that question instead.

Q: Where were you born?

A question like this may be asked as a conversation starter, but it can also get into dangerous territory by touching on national origin. Asking a person where they are from, or where they were born, may solicit information about their ancestry. If you just want to get the conversation going, a more appropriate question would be “Tell me a little bit about yourself.” Even better—get right to the point and dive into the substantive interview.

Q: What year did you graduate from high school?

Asking questions about when someone graduated can be problematic because it can be interpreted as a veiled attempt to learn more about how old the candidate is. Technically, it is not illegal to discriminate based on age for those under 40, but it is probably not good practice. For those over 40, age discrimination is federally protected. Consider why you would need to know this information. If the reason is because you want to gauge how much experience a person has, specifically ask about that and how many years of experience an individual has doing a particular job.

Q. Do you have a reliable childcare arrangement?

At some point during an interview, a candidate may volunteer information about his or her personal life, such as family commitments or children. You may truly be concerned with a candidate’s ability to balance work and family, but don’t ask a question that may seem to play off gender stereotypes or that might be connected to pregnancy status. For example, you can simply ask the candidate whether he or she is able to commit to being in the office Monday through Friday, from 8:00 a.m. to 5:00 p.m., or explain that any candidate must be able to commit to providing a certain number of hours in the office.

Q. Have you ever used illegal drugs?

Under the ADA, employers should not ask about past illegal drug use because it falls into the category of a “disability-related” inquiry. You may, however, legitimately ask whether the candidate is presently using illegal drugs. In addition, if the company has a policy to administer drug tests to candidates, you can ask: “Our policy is to administer drug tests to candidates. Would you be comfortable submitting to such a test?

Tips for Keeping the Hiring Process Legit

Avoiding these specific questions is just the start of ensuring that the hiring process stays on the right side of the law. Here are a few more tips to think about when preparing for an interview:

Don’t Forget to Monitor Casual Chitchat.

You may have HR-approved interview questions in hand, but don’t forget the casual conversations that occur before and after the formal interview, or during more casual settings, such as over coffee or lunch. It will matter little to the EEOC that you casually asked the job applicant over a lunch whether she is planning to start a family soon. What the EEOC cares about is whether there is evidence that may indicate you took the applicant’s sex into account when hiring. And when you discuss topics that get at those protected classes, you run the risk of looking guilty if you decide not to hire that candidate.

Ask the Question that You Really Want Answered (But Think Twice About Why You Want that Answer in the First Place).

There are sometimes good reasons why employers think they need to ask the “illegal” questions. But rather than framing the question in a way that suggests you care whether someone has children or grandchildren, focus on the things that matter, like whether she can get the job done. And consider whether you are letting unsubstantiated stereotypes or biases creep into the hiring process; take time to improve your processes and give each candidate a chance to prove himself or herself on the merits.

Focus on Questions that Show Whether the Candidate Meets the Qualifications of the Position.

With so many excellent interview questions, you don’t need illegitimate ones in an interview. Because time is limited, focus on questions that will help you figure out if the person is going to be a good fit with the organizational culture, or whether the person has the experience and skill set to do the job. Answering these questions will take more than enough time.

If a Candidate Volunteers Information about His or Her Protected Status, Use Discretion.

In the real-world, interviews often play out like a normal conversation. And people like to volunteer information about their lives. If a candidate volunteers that she has three kids and one on the way, for example, use discretion--respond pleasantly and then move on. We aren’t robots, but it is important not to allow the interview to turn into an excuse for a lawsuit.

Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations