As employers and managers conduct job interviews, they may not be aware of the specific types of illegal interview questions. Federal anti-discrimination laws like Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) prevent such illegal interview questions. In addition, state and local laws prohibit discrimination based on certain protected categories. These categories can include marital status, arrest and conviction records, military discharge status, or pregnancy status. Violating state and federal laws through discriminatory screening tactics or asking illegal interview questions can be costly for businesses. Violations vary on the size of the employer and can result in fines ranging from $50,000 to $300,000 per person in an employment discrimination lawsuit.
Unfortunately, though, it is not always obvious which interview questions are actually illegal. Most interviewers may be aware that asking a job candidate about their sexual orientation may be illegal, for example. However, many may be surprised to learn that other seemingly innocuous questions are, in fact, prohibited. For example, employers may not ask about marital status, homeownership, or even the year a candidate graduated from high school or college. In many cases, though, simply changing the wording can turn illegal interview questions into legal ones.
Illegal Vs. Legal Interview Questions
To begin, it is illegal for an employer to make any employment decision based on one or more protected classes. Specifically, these protected classes include race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. To be clear, this means an employer may not discriminate in activities involving hiring, firing, promotions, and pay. Furthermore, employers may not discriminate when setting various other terms of employment. Other terms can include granting breaks, approving leave, or assigning workstations. One way to avoid discrimination during the hiring process is to avoid asking illegal interview questions. However, employers must first understand the difference between illegal and legal interview questions.
Generally, information obtained or requested during a job interview should be limited to that which is essential for determining whether an individual is qualified for the job. Therefore, information regarding characteristics like sex, national origin, religion, or age is, more often than not, irrelevant. According to the U.S. Equal Employment Opportunity Commission (EEOC), employers and managers should avoid asking such irrelevant questions. Interview questions that screen out individuals based on those categories can be used as evidence in a discrimination case.
Bona Fide Occupational Qualifications
As an exception to the law, employers may show that the interview question relates to a bona fide occupational qualification (BFOQ). BFOQs allow that, in some extremely rare instances, an individual’s sex, religion, or national origin may be reasonably necessary to carry out a particular job function in an employer’s normal operation of a business or enterprise. BFOQ exceptions are evaluated on a case-by-case basis.
Types of Illegal Interview Questions
Illegal interview questions are heavily based on previously discussed federally-protected classes. In many instances, it’s clear what an employer or manager should not ask a job applicant. Other times, it may not be as obvious. In fact, what may seem like an innocent question can result in a discrimination claim if the job applicant was suspicious about the employer’s intent. The following seven categories describe the types of illegal interview questions one should never ask a job applicant.
1. Birthplace, Ancestry, or National Origin
Under the Immigration and Nationality Act (INA), employers must verify the identity and employment eligibility of all employees. Specifically, employers accomplish this by completing the Employment Eligibility Verification Form (Form I-9). Additionally, employers review acceptable documents verifying identity and employment authorization. However, employers may not start the Form I-9 process before the employee has accepted an offer of employment. Consequently, employers cannot ask illegal interview questions regarding birthplace, ancestry, or national origin. Examples of these include:
- “I noticed you have an accent. Where are you from originally?”
- “How did you learn to speak Chinese?”
Alternatively, employers may ask applicants:
- “Are you eligible to work in the U.S.?
2. Marital Status, Children, or Pregnancy
The EEOC receives over 2,000 charges of alleged pregnancy discrimination every year. Some employers frequently use illegal interview questions regarding marital status and the number and ages of children to discriminate against women. This illegal practice violates Title VII. Employers should not ask of an applicant’s marital status, number of children, or pregnancy history when they are not relevant to the job. Examples of illegal marital, children, or pregnancy-related questions are:
- “Are you planning to have children?”
- “What is your maiden name?”
Instead, employers can ask:
- “Would you be able to work a 9:00 a.m. to 6:00 p.m. schedule?” This question is only acceptable if it is asked of all applicants and if the job requires a specific work schedule.
In addition, employers may indeed ask questions regarding the number of dependents or marital status after an employment offer. In this case, these questions must relate to legitimate business purposes like insurance benefits.
3. Physical Disability, Health, or Medical History
The ADA prohibits employers from asking disability-related questions or requiring medical examinations until after an applicant has been given a conditional job offer. Nor may an employer require job applicants to answer medical questions or take a medical exam before they receive an employment offer. An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). This prevents employers from making arbitrary judgments about an applicant’s ability to perform the job. Markedly, this holds true even if the employer is determining a reasonable accommodation for an applicant that may appear to have a disability. Illegal interview questions of this nature include:
- “Are you able to use your legs at all?”
- “Do you have any pre-existing health conditions?”
However, employers may indeed ask:
- “Can you perform the essential functions of the job, with or without reasonable accommodation?”
Thus, an employer may ask a job applicant whether they can and how they would perform the job. Finally, after a job offer, an employer can condition the offer on the applicant answering certain medical questions or successfully passing a medical exam. However, the employer must require this of all new employees in the same job.
Except in rare cases where the applicant’s religion qualifies as a BFOQ, an employee may not ask an applicant about their religious affiliation or beliefs. Generally, such questions are non-job-related and, therefore illegal. Note that federal laws the EEOC enforces exempt religious corporations, associations, educational institutions, and societies from religious discrimination. In brief, employers whose purpose and character are primarily religious are permitted to lean towards hiring persons of the same religion. The non-exempt majority of employers, on the other hand, must refrain from asking questions like the following:
- “What religious holidays do you celebrate?”
- “Do you attend church every week?”
Alternatively, employers may ask employees questions like:
- “Can you work on weekends?” An employer may only ask this if they ask it of all applicants and if weekend hours are a business necessity.
The ADEA protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. Accordingly, employers should not ask applicants illegal interview questions related to age or that could reveal their age. Some age-related illegal interview questions are obvious, while others may seem innocuous. Regardless, they are problematic and employers must avoid them. Examples of these illegal interview questions include:
- “How old are you?”
- “I went to high school in Oakland, too—what year did you graduate?”
On the other hand, certain employers need to ask specific interview questions regarding age. Generally, employers may ask age-related questions when verifying that applicants meet specific legal age requirements for a job. Thus, an employer may ask:
- “Are you over the age of 18?”
6. Sexual Orientation/Gender Identity
Unless an applicant’s sex or gender represents a BFOQ, an employer may not ask illegal interview questions about the individual’s sex. This includes inquiries into their sexual orientation, gender identity, pregnancy, marital status, number of children, abortions, birth control, ability to reproduce, and name or address of spouse or children. Pre-employment illegal interview questions about sexual orientation or gender identity may imply limitations or special treatment related to sex. Therefore, they can lead to charges of discrimination. Examples of sexual orientation or gender-identity-related illegal interview questions include:
- “What is your sexual preference?”
- “Do you prefer Mr., Mrs., Miss, or Ms.?”
Instead, employers should keep interview questions job-related. Questions should focus on the performance of job duties, as required of all employees. Thus, employers may ask applicants:
- “This job requires employees to regularly lift heavy items. Can you lift boxes that weigh more than 40 pounds?”
“Financial information” includes current or past assets, liabilities, or credit rating, bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts. Federal EEO laws prohibit employers from discriminating against employees based on financial information. Thus, in many cases, asking financial questions may be problematic. Nonetheless, employers may legally ask financial questions only if:
- The financial question is applied equally to all applicants.
- A financial requirement helps identify responsible and reliable employees.
- Any financial requirement does not significantly disadvantage people of a particular race, color, national origin, religion, or sex.
Regardless, to avoid discrimination, employers may not ask financial-related illegal interview questions such as the following:
- “Do you own a car?”
- “Do you own or rent your home?”
Alternatively, employers may ask:
- “Do you have reliable transportation to and from work?”
While employers may not ask financial-related illegal interview questions that lead to discrimination, employers may indeed run background checks to help make an employment decision. However, when using applicant background information, employers must comply with federal laws enforced by the Federal Trade Commission (FTC) and the EEOC. Note also, that some states and municipalities regulate when employers may request a background check and how they may use gathered information.
When making personnel decisions, such as hiring, employers sometimes consider the backgrounds of applicants. Information discovered during a background check can include work history, education, criminal record, financial history, and even social media use. Employers should know that federal and state laws protect employees from illegal discrimination during this process.
When requesting a background check, employers must follow the Fair Credit Reporting Act (FCRA). Specifically, the FCRA requires employers to communicate in writing if they will conduct a background check. Additionally, the FCRA requires an employee’s written permission for such background checks. Finally, employees must receive notices when employers use information discovered during the background check.
Interviewing Best Practices
Ensuring and communicating a standard and objective hiring process for all applicants can help employers avoid discrimination charges. The following are best practices, beyond avoiding illegal interview questions, for screening and hiring job applicants:
- Communicate and enforce compliant hiring and promotion policies and practices to employees involved in these decisions.
- Plan questions in advance and submit them to Human Resources for review and approval prior to the interview.
- Understand the types of questions that federal, state, and local laws prohibit.
- Ensure recruitment and hiring decisions are not based on one or more protected classes.
- Screen applications consistently, applying the same standards to everyone.
- Reasonably accommodate qualified applicants who need assistance because of their disability or religion.
- Make sure any characteristics that are BFOQs can be justified; and provide evidence to support the claim.
- Retain applications and interview notes for at least one year.
Hiring and Onboarding Digital Compliance Bundle
State, federal, and local laws prohibit hiring discrimination against job candidates based on a protected characteristic. These protected characteristics include sex, gender, age, race, religion, national origin, pregnancy, disability, military status, and/or marital status. Any illegal interview question that elicits information about a protected characteristic under antidiscrimination laws may be used as evidence of an unlawful preference or bias. Additionally, employers must provide specific forms and notices to new hires under state & federal laws and maintain certain records created during the hiring process. These may include tax & employment eligibility forms, written disclosures about harassment, workers’ compensation, paydays, and paid leave benefits.
- For this reason, Personnel Concepts created the Hiring and Onboarding Digital Compliance Bundle. This collection of digital resources helps employers ensure that their hiring and onboarding process complies with state and federal anti-discrimination laws, notification requirements, and documentation requirements.
- The digital resource bundle includes Interviewing & Hiring Laws Training for Employers and Managers. This online, interactive training module trains business owners & managers on the difference between legal and illegal interview questions. Also included with the module are supplemental materials, including a downloadable collection of pre-written interview questions. (Customers may also purchase this training module separately).
NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.