There are questions no interviewer should ever ask, particularly when they move into protected class categories.
The interview process is designed to uncover pertinent information about the candidate to assure they’re the right fit for the job. The questions you pose and the answers you receive can be enlightening, or they can put your company at risk. There are questions no interviewer should ever ask, particularly when they move into protected class categories.
Most people know it’s unlawful and potentially discriminatory to ask a job seeker their:
- National origin
- Other protected class
Interview questions should revolve around the work, not the worker.
There are also indirect questions that can be as problematic as direct ones. Inquiries that fish for information incidentally are just as illegal and potentially discriminatory. Take care not to move into these areas, either on purpose or accidentally.
Steer clear of the forbidden topics
Understanding the boundaries of what questions must be avoided is critical for your success. So let’s dig into the protected classes.
Age discrimination is a protected class under federal law, primarily to protect older workers. You wouldn’t ask someone how old they are — and your application cannot require a date of birth.
Additionally, don’t ask candidates to reveal their age indirectly with questions like these:
- I went to that college – class of 2012 – what year did you graduate?
- Are you comfortable working with older/younger people?
- When do you plan to retire?
If you’re hiring someone to work in a senior living or daycare facility, a question about working with infants or the elderly may be relevant. Rather than asking about a candidate’s comfort level, ask them to discuss how they work effectively with these groups. Otherwise, the question may suggest you think they’re too old (or young) to work effectively in the role.
Federal law also protects a candidate’s national origin. Where a job seeker was born is irrelevant to the work.
So, stay away from questions that suggest you’re interested in their heritage, like:
- Is English your first language?
- Do you speak English at home?
- Where are your parents from?
- Where did you grow up?
If the position requires a candidate to be bilingual, ask if they meet the language requirement, but don’t ask if that is their native tongue. You are within your rights to ask if they are authorized to work in the US, but don’t go further into their background.
Religious affiliation is also protected under federal and local law. Even if the candidate’s attire suggests a particular religion, it should not be the subject of inquiry.
Avoid questions like these:
- What church do you go to?
- What religious holidays do you observe?
- Would you need Sundays off?
Businesses have a right to ask whether a candidate can work nights, weekends, and holidays if the job requires them to do so. If the candidate requests a religious accommodation (like Sunday off), employers should make the accommodation if it does not present an undue hardship on the business.
Questions about sexual orientation, pregnancy, and gender identity are prohibited under federal law. Even if the candidate looks like their baby is due any day, it’s illegal to inquire.
Stay away from questions like these:
- Did you attend the recent Pride parade?
- Are you pregnant?
- Do you plan to have children in the future?
- What are your preferred pronouns?
Preferred pronouns may be relatively new for employers. Experts suggest businesses refrain from requiring information about preferred pronouns but that they create a culture where employees (and job seekers) are comfortable offering pronouns if they choose.
A candidate may include pronouns on their resume, suggesting they’re comfortable discussing them. Recruiters may offer their own preferred pronouns, creating an opening for a candidate, but shouldn’t ask directly. It’s important to respect choice and privacy.
Information about a person’s mental and physical disabilities is protected under the Americans With Disabilities Act (ADA). The Genetic Information Nondisclosure Act (GINA) protects workers and job seekers from being discriminated against based on their or their family member’s genetic information.
Don’t ask about physical or mental conditions, even in an indirect way, like these questions:
- Do you have any mental or physical conditions we should know about?
- How many sick days did you take at your last job?
- Have you recovered from any illness or injury recently?
- Is everyone in your family healthy?
- Have you ever filed a workers’ compensation, long- or short-term disability claim?
If the job has physical requirements, you may ask a candidate if and how they can meet those requirements with or without accommodation. If the request for an accommodation does not pose an undue hardship to the business, it should be granted.
Depending on where you do business, some locations protect workers from being asked about their personal status.
Therefore, avoid asking questions that delve into personal lives, whether it’s prohibited in your area or not. Don’t ask questions such as:
- Do you have a car?
- What does your spouse do?
- How many children do you have?
- Do you have childcare in place?
Employers may ask if candidates have reliable transportation to get to work but not whether they have a car. If your company is not accessible by public transportation, you may consider a car a necessity, but candidates may have ride shares available to them. If you are accessible but trains/busses stop running at times that might leave an employee stranded, ask them to review the schedules before they accept a job offer.
When it comes to children and childcare, consider whether you’d ask a male applicant if they have children and reliable childcare. Most employers would not – so don’t ask female applicants either.
You can let the job seeker know the hours the position is expected to work and whether or not there is routine or unexpected overtime for the job.
Asking if a candidate can work overtime or if being called in at a moment’s notice would be a problem is fine. However, don’t ask for particulars of their family or childcare situation.
No federal laws currently prohibit asking about criminal convictions. However, the EEOC recommends that you, as a potential employer, not ask the question until after an offer of employment has been made. At that point, you should ask only under specific circumstances. In many states and local areas, questions about criminal history are prohibited by law.
Don’t try to find out about criminal history with questions like these:
- There’s a gap in your employment history. Were you unavailable to work?
- Do you have a clean record?
- Can you pass a background check?
As a prospective employer, after you have made a conditional offer of employment, State and federal guidelines suggest you may ask about criminal convictions. Then, if there is a conviction, employers must weigh the applicant’s record against the needs of the company on a case-by-case basis before eliminating them from additional consideration.
Some states and local areas ban salary history questions; others prohibit the use of credit checks when making hiring decisions. Check with your local Department of Employment for rules that apply where you do business.
A best practice is to avoid questions like these:
- This position pays XX dollars per hour — would that be an increase for you?
- Do you own or rent your home?
- Do you have a bank account?
- Would we have to worry about wage garnishments?
- Have you ever filed for bankruptcy?
While there is no federal law that stops employers from asking, similar to criminal history, the EEOC and state regulations prohibit basing hiring decisions on financial information unless it has direct relevance to the position. A position that requires an employee to be bonded may exclude someone who has filed for bankruptcy, for example.
Federal law protects veterans from inquiries into their active duty and discharge status. You cannot directly ask what the conditions of their discharge were. Asking whether they expect to be deployed is out of bounds, too.
Avoid questions that suggest you want to know:
- Did you serve your full term in the military?
- Are you eligible for VA benefits?
- Do you have a deployment reporting date?
Stay focused on the role
Interviewing must focus on the work — not the worker. Keep questions — even indirect ones — on topic. This way, you will make sure you’re not inadvertently asking for prohibited information.