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It can be stressful to interview candidates to fill an open role at your company. Maybe your boss is on you to hire someone who’s absolutely perfect as soon as possible. Maybe you don’t have a ton of experience yet in conducting interviews. Whatever the case, there’s a lot to take under consideration when you’re the one in charge of interviewing. For instance, “What questions can you not ask in an interview?” may very well be running through your mind given its legal ramifications. Knowing exactly which interview questions are off-limits (and which are fine to ask) will boost your confidence as you continue to search for the ideal new hire.
Topics of Concern in General
Let’s start with a list of the topics you shouldn’t broach during an interview because they might lead to discrimination (or what appears to be discrimination). To be on the safe side, don’t ask questions that have to do with your candidate’s privacy rights or their protected status.
Below is a comprehensive list of the general topics you should avoid during an interview:
- Gender Identity
- Genetic Information
- Sexual Orientation
- Country of Origin
- Marital Status
- Family Status (Kids)
- Salary History (depends on the state)
The Gray Areas
There are some topics that aren’t technically illegal but are still considered off-limits. Though the questions may be well-intentioned, they could play a role in influencing unconscious biases, which is one of the most common interview mistakes that employers make. Even if the answer has no affect on the way you perceive the candidate, just asking these questions could lead to an appearance of discrimination.
The subjects below are generally inappropriate to ask about during an interview. Therefore, they should be avoided.
- Height and Weight
- Financial Information
- Union Affiliations
- Unemployed Status
- Background Checks
- Credit Inquiries
- Arrest Record/Convictions
- Military Service Discharge Information
- Medical Questions and Examinations
- Weekend/Evening Availability (might be seen as a covert way of determining a candidate’s religious background and/or childcare responsibilities)
What Questions Can You Not Ask in an Interview?
It’s crucial to know what you can and can’t ask as an interviewer because the wrong questions can expose your company to legal action. If you quickly build a comfortable rapport with a candidate, be careful not to bring up topics that might be viewed as a reason for a discriminatory hiring decision.
Overall, the best way to avoid questions that you can’t ask in an interview is to structure your interview process. So as you begin to build a structured interview plan, explore each topic one by one to learn what is and isn’t acceptable.
The Age Discrimination in Employment Act (ADEA) protects workers over the age of 40 from workplace discrimination. While you can ask a candidate if they are 18 or older to confirm they are a legal adult (or at least 21 to work in a bar), you cannot ask leading questions that would prompt candidates to disclose his or her age. Also, you should refrain from making comments or taking notes about the candidate’s estimated age.
Citizenship or National Origin
You are allowed to ask if the candidate is legally eligible to work in the country and if they can provide proof of this if hired. You may also ask the candidate what languages they speak if it is a job requirement. But don’t directly ask if they are a citizen, what country their parents are from, or where they were born.
It’s been found that disqualifying candidates for convictions disproportionately affects certain minority groups. So if your role isn’t security-sensitive or is unrelated to the conviction, don’t inquire about it. On the other hand, if the position requires knowledge of convictions, then request permission to do a background check. From there, you should provide the candidate with a copy of his or her background check. If the results influence hiring decisions, then you should have an open, honest conversation about that with the candidate.
Marital or Family Status
Don’t inquire about the candidate’s marital status (married, single) or if they have children. Instead, you can ask if they have any outside commitments that might prevent them from working the shifts they’re assigned.
Disabled job applicants and employees are protected by the Americans with Disabilities Act (ADA). If the candidate has an obvious disability (or told you about their disability), it’s fine to ask if they will be able to perform all the job functions. You should also accompany that question with asking what accommodations they will require. DO NOT, however, directly ask if they have a disability, have ever filed a worker’s compensation claim, or have ever suffered from a workplace injury.
Race / Color / Ethnicity
It is almost never acceptable to ask an interviewee about their race, color, or ethnicity. However, if you are inquiring for Diversity and Inclusion (DEI) or Affirmative Action purposes, then you should consult with your legal advisor first.
Avoid asking about a candidate’s financial status (certain minority groups are impacted more by poverty than others). Do not ask if they own a car unless it’s a requirement of the job. Don’t inquire about home ownership or if they are in debt.
Religious organizations are the only ones that are allowed to hire based on religion. If yours doesn’t fall into this classification, steer clear of asking any religion-related questions.
This one is a little tricky. If your questions about unemployment are completely standardized and you don’t selectively exhibit bias, then you can ask about unemployment status. What you can’t do is use this criterion against only certain groups of people.
Background Checks/Credit Checks
While both background and credit checks are legal, you can’t use them against specific groups. You’ll also need to make sure that any credit checks you run are allowed under the Consumer Credit Reporting Reform Act of 1996 and the Fair Credit Reporting Act of 1970. Questions to refrain from asking include: “Do you have a bank account?” “Have you ever declared bankruptcy?” and “Have your wages ever been garnished?”
Medical Questions & Examinations
You shouldn’t inquire about somebody’s (evident or perceived) medical condition, although you can safely ask if they are able to perform all job duties. You are also allowed to ask them to complete a medical examination, but only if this is expected of all candidates.
Feel free to ask questions about a candidate’s job-related military experience but refrain from asking questions about non-U.S. military service and discharge details (unless the role necessitates a security clearance). Why? Because civilians don’t always understand all the intricacies of various kinds of military discharges and might make incorrect assumptions (sometimes dishonorable discharges are simply administrative in nature, for instance). Questioning a discharge might also lead to discoveries about the candidate’s sexual orientation, medical history, disability, and so on.
Height or Weight
You are welcome to ask the candidate if they can perform all the necessary job functions. However, it is rare that having a certain and weight is a necessary job requirement. So, don’t directly inquire about their height or weight since this can be discriminatory in nature.
You can ask for the candidate’s address but be careful your questions don’t center on their financial or family statuses. For example, don’t ask who they live with or if they rent or own a home. When you do ask for the candidate’s address, it’s advisable to do this in the final stages of the hiring process so that necessary paperwork can be completed.
An arrest record is not the same as a conviction because it is not definitive proof that someone broke the law. However, that does not mean that it is okay to ask about in an interview. The only time this is relevant is if the arrest is directly related to the position. If that’s the case, then it’s best to go through the process of obtaining a background check.
Only ask family-related questions if they have a direct bearing on the job or if there’s a potential conflict of interest. For instance, you can question if the candidate has relatives working for your company or for your competitors. Don’t ask for the specific names of any relatives who work for the competition, though.
Be cautious about what personal information you request. While you can ask if the candidate has ever worked for you before under a different name, steer clear of asking about maiden names or name changes. You can, however, ask for the names of references.
How to Deal with Illegal Interview Questions as a Candidate
Unfortunately, illegal interview questions do happen – sometimes accidentally and other times on purpose. So, candidates should know how to handle these situations. Here are some tips on what to do if an interviewer ever crosses the line with you:
- Understand that you’re under no obligation to answer an illegal question.
- Save a written version of the question (if asked verbally, write it down).
- Know that an employer can’t retaliate if you falsely answer an illegal job application question.
- Contact an EEOC center if you decide you want to report the employer.
- Keep a record of the discriminatory questions as you might have a legal claim in the future if you’re ever fired.
Recruiting is all about updating hiring practices to attract the best talent. However, once you’ve got quality talent, the interview process will be a telling sign of how well you and your candidates fit. On one hand, you want to get all the information you need to make an informed hiring decision. On the other hand, you need to do this without offending your candidates through bias and discrimination. By familiarizing yourself with the article above, you’ll know which topics to think twice about before bringing them up in the interview. That way, you can build relationships with candidates, and conduct interview processes that are fair, legal, and respectable.