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Illegal Question

The hiring process can be challenging. The process of advertising a job posting and filtering resumes is lengthy. When it comes time to interview, you need to ask the right questions to determine if the candidate is qualified, but you also must be wary of asking the wrong questions. Let’s explore the dos and don’ts of interview questions.

What Are Illegal Interview Questions?

Illegal interview questions are those questions asked about an applicant’s personal characteristics that are protected by law, such as race, color, religion, sex, national origin, or age. These types of questions may be viewed as evidence of intent to discriminate by the Equal Employment Opportunity Commission (EEOC), and asking such questions can open your organization up to a discrimination lawsuit.

Why Are Some Interview Questions Illegal?

Interview questions that solicit information such as race, color, religion, health, age and sex from job candidates that could be used to discriminate against them are illegal (EEOC).

The EEOC states that it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. It is also illegal to retaliate against a person because the individual has complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law forbids discrimination in every aspect of employment.

In addition, employers covered by these discrimination laws are prohibited from using employment policies and practices that have a unfairly negative effect on applicants or employees of a protected class (such as age, race, religion, etc.) when the policies and practices are not job-related or necessary to the operation of the business.  For example, you may not test skills that negatively impact female applicants, such as xxx.

Topics to Stay Away from During Interviews

There are a variety of topics that can increase your organization’s risk of getting sued in a discrimination suit, even though they seem harmless.  Here are some topics to stay away from during an interview.

Geography

During the interview, you may notice a familiar accent, or perhaps the candidate mentions a location you have visited. Being friendly and curious, you may want to ask, Where are you from? Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone based on geographical origin. Asking such a question can be deemed as discrimination. Instead, you may ask if the candidate is eligible to work within the United States and is able to provide supporting documentation.

Age

The Age Discrimination in Employment Act of 1967 prohibits age discrimination in employment of individuals over the age of 40. Avoid questions that could potentially identify a candidate’s age, such as How old are you? What year did you graduate high school?  Instead, refer to your organization’s age requirement; for example, (assuming your company does not hire minors), Are you over the age of 18?

Salaries

There are a handful of states and locales (e.g., California, Massachusetts, New York City and Philadelphia) that have made some salary-related interview questions illegal. Though these laws may not apply in your jurisdiction, it is recommended that you avoid asking questions such as What is your current salary? Instead, share the position’s salary range with the candidate and ask if that falls in line with their expectations.

Religion

Any questions that may be perceived to be aimed at one’s religious affiliation, what holidays they observe, and if they can work weekends or nights should be avoided. These types of questions can be interpreted as a question of religious observance. Instead, share the hours of work expected for the position, and ask them if they are able to meet that schedule.

Health

Though your organization may have many positions that require an employee to lift, stand or sit for long periods of times (and/or other physical ability requirements), you cannot ask a candidate about their health.

Questions pertaining to physical or mental health, previous surgeries, or if a candidate is in good health are all illegal. You may not inquire about weight, height, or pregnancy status. In addition, the Americans with Disabilities Act of 1990 protects those individuals who are recovering from alcoholic or other types of addictions.

You are permitted to ask if a candidate is able to perform the essential functions of the position, with or without accommodations. Be sure to share the physical requirements of the role (e.g. lifting, loud noise, sitting, etc.).

Arrests and Convictions

Arrest and conviction history is tricky. Rejecting candidates purely on a conviction record has been shown to unfairly impact some racial groups.

Federal law does not prohibit employers from asking about a candidate’s criminal history; however, you may not use that information to discriminate against the candidate.

In addition, depending on your state or local law, some jurisdictions do not allow the use of arrest and conviction records to disqualify a candidate from employment. Employers cannot legally ask a candidate about their arrest and conviction record—a movement commonly known as “ban the box,” referring to the checkbox on the application asking about criminal records—unless a conviction is related to the actual job, such as a record of sexual violence for a job that involves working with children.

The EEOC recommends that employers do not ask about convictions on job applications, but wait until after an offer has been made. Be sure to inform the candidate that a successful completion of a background screening is a requirement for hiring.

Lastly, always review your state  and local laws prior to inquiring about an applicant’s criminal history.

Job Interview Tips

  • Ensure that all interview questions are relevant to the position.
  • Be consistent by creating a set of questions to be asked of all candidates interviewing for the role.
  • Educate hiring managers about what they can and cannot ask in interviews.

Questions You’ve Asked Us About Illegal Interview Questions

What should I do if a candidate tells me information I shouldn’t know?
If a candidate provides information that is not relevant to the position, disregard it.
What are the legal consequences of asking an illegal question?
Asking illegal interview questions can lead to the candidate filing charges of discrimination to the EEOC, which could issue a right to sue notice, resulting in costly legal fees.
Wendy Kelly

Wendy Kelly

Wendy is a HR professional with over 10+ years experience in both health care and education. She is the owner of Kelly’s HR Services, a full service HR consulting agency. She is also SHRM and HRCI certified, and serves as a HRCI Ambassador.

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