During the interview process, you want to learn as much as possible about your top candidates before you make the very important decision of who to extend a job offer to. However, it’s important that you don’t expose yourself or your organization to a potential lawsuit. Knowing what questions to ask, and more importantly, what questions NOT to ask, is critical.
Before we dive into what questions you can ask, it’s important to understand why some questions are illegal and therefore off-limits. Both federal and state laws prevent employers/recruiters from asking questions that aren’t related to the job they’re hiring for. The rule of thumb is that unless the questions have to do with the job requirements, then they shouldn’t be mentioned during an interview, casual conversation, facility tour, etc.
Illegal interview questions concern: gender, sex, or sexual orientation, marital or family status, citizenship or nationality, age, religion, credit history, criminal record, disability, and military discharge.
To not hire someone because of any of these factors would be discriminatory.
Most interviewers have good intentions and when illegal questions crop up in an interview both the questioner and the candidate may be ignorant to their legality. Regardless of the fact that you want to learn as much as you can about a potential hire or simply make conversation, not knowing the law can’t protect you from getting in trouble.
Below are 6 examples of illegal job interview questions and a work around to gain information without breaking the law.
- Don’t ask this: Where do you live? This sounds like an innocent enough question and often times the candidate will provide this information on a resume, but if a candidate lives at an area inhabited mostly by minorities, you risk lawsuits for racial discrimination.
- Ask this instead: If you are worried about attendance due to a long commute or the candidate being able to be on call after hours, be direct and ask them relevant questions such as “ We require on-call employees to respond within 30 minutes, is that doable?” or “Are you able to be here by 8 am every morning?”.
- Don’t ask this: Are you or have you ever used drugs? This question can illegally target recovering addicts or people with health conditions who are protected by the Americans with Disabilities Act.
- Ask this instead: Assuming the goal is to determine illegal drug usage, most people will always say no when asked if they use illegal drugs. The alternative is to simply ask them if they are comfortable taking a drug test and following through once an offer has been extended and accepted.
- Don’t ask this: How old are you? Questions that give you any insight into their age are off-limits, including the year they graduated from high school. It can lead to age discrimination which is illegal under the Age Discrimination in Employment Act.
- Ask this instead: Some jobs do require candidates to be over a certain age in order to abide by some laws. Consider asking them if they are legally allowed to perform the job or go into some of the specific demands (mental, physical, and emotional) and ask if they will have any issues performing them.
- Don’t ask this: What is your native language or is English your native language. Questions like this can lead to the interviewee feeling like they are being discriminated against based on an accent and their nationality or race.
- Ask this instead: Being fluent in different languages can be a requirement of a job especially if you are hiring for a call center or have other divisions or customers internationally whom you speak to often. If so, the law allows you to make a hiring decision based on language ability. You still can’t ask whether they’re native speakers but you’re allowed to evaluate their communication skills during the interview. You’re also allowed to ask how fluent they are in other languages. Consider asking them these instead, “Which languages can you speak fluently?” or “How would you rate your communication skills?”.
- Don’t ask this: Do you have or plan to have children? Any questions related to parenthood are off-limits, especially women who are protected by the pregnancy discrimination act. Are you asking because you are worried about attendance, overtime, or other commitments for the position and are worried a family life may take priority?
- Ask this instead: Asking direct questions about their commitment is the best option. If overtime is required, let them know and ask if they will be able to work late nights or weekends. If the job requires travel, let them know the percentage and when it may occur and ask if that is a concern. Being transparent about the job demands upfront can make the hiring process easier as well.
- Don’t ask this: Have you ever been arrested? Just because someone was arrested doesn’t mean that they were convicted of or engaged in criminal activity. The equal employment opportunity commission warns that arrest questions can have underlying racial discrimination intent since some ethnic minorities have higher arrest records than others.
- Ask this instead: If your intent is to determine how trustworthy the employee is, consider asking if they have ever been convicted of a crime, including any specific ones you are worried about or if they have ever been disciplined for violating any company policies at a previous job. If your company also conducts background searches, you can let them know that it’s a requirement of employment and ask if there is anything they may want to discuss that may pop up on the report.
Toeing the line between legal and illegal can be hard especially when some questions feel normal to ask in conversation when getting to know someone new. It’s important to remember that this isn’t a networking or social event, but an interview. No matter how likable or interesting the candidate is, resist the temptation to start a personal discussion. Don’t ask anything about their lifestyle, opinions or background that is considered personal.
A good rule of thumb is to not ask anything you can learn from a different source. Background checks are key. If you follow the legal procedure, you can learn several things without asking the candidate, such as: conviction records, bad credit, etc. References or previous employers are also good sources to find out more about the candidate through legal means. Doing a quick Google and social media search can also tell you a lot about a candidate as well.
If you are ever in doubt if your question is illegal, it’s best not to ask it. Additionally, employers need to be sure that their interview questions are the same for all candidates, and that questions relate strictly to the knowledge, skills, and abilities required to be successful in the role.