As an employee, you probably know the job interview questions you should ask a candidate —after all, there are tons of resources on the internet about the ‘right questions to ask during an interview.’
But have you ever wondered about the illegal questions that you should avoid? The questions listed here can get your business in trouble because they reek of discrimination and if the claims are substantial, the U.S.Equal Employment Opportunity Commission (EEOC) can investigate your business.
Of course anyone can make a mistake and sometimes basic questions (that feel alright in normal circumstances) can actually be the ones to avoid! For example, asking someone “Do you have a car?” unless it is part of the job role can be discriminatory!
It is particularly important to avoid asking questions indirectly or inadvertently related to protected characteristics, as this can lead to discrimination claims. Protected characteristics refer to personal traits that an individual has which can’t be used to discriminate against them.
In this post we’ve broken up all the questions that are classified as “illegal” and you should know.
Illegal questions you shouldn’t ask a candidate during an interview
There are many questions that are inappropriate or illegal questions. Some illegal questions include the following:
1. Do you have a disability?
This is an illegal question under the Americans With Disabilities Act of 1990. Although certain disabilities are evident, e.g. if an individual is using a wheelchair. Most disabilities that are covered by the Americans With Disabilities Act aren’t evident at the time of an interview.
Instead, you might ask the interviewee whether they’re qualified to perform the job. The candidate can mention whether they have a disability that requires accommodation after you’ve offered them the position.
A discrimination claim could be brought against you even if you didn’t intend to discriminate against someone with a disability.
2. Are you married?
This is an illegal question as it’ll reveal the candidate’s marital status and potentially their sexual orientation.
Under Title VII of the Civil Rights Act of 1964, it’s illegal for an employer to refuse to hire a candidate on the basis of their sex.
3. How old are you?
This is an illegal question, and it can lead to age discrimination against the candidate.
Individuals aged 40 and over are provided with protection from age discrimination by the Age Discrimination in Employment Act of 1967.
Questioning a candidate about when they finished high school can suggest an age bias as this information can be used to determine their age and is also something that needs to be avoided.
If the position you’re interviewing the candidate for has a minimum age requirement and you want to determine whether the candidate meets this requirement, you can ask alternative questions.
For example, you could ask the candidate whether they’re at least 18 years old or the minimum age required to perform the job.
4. Are you a U.S. Citizen?
It’s illegal to ask candidates this question. The EEOC states the majority of employers can’t ask a candidate whether they’re a U.S citizen prior to offering them the position.
Additionally, this question is typically answered through the job application form. Similarly, job recruiters are in charge of determining which candidates can’t legally work in the country.
However, you’re allowed to ask them whether they’re legally allowed to work in the U.S.
5. Do you celebrate any religious holidays?
Although you may want to find out whether the candidate’s lifestyle conflicts with their work schedule, it’s illegal to ask candidates questions that could reveal their religion.
An employer can’t refuse to hire a candidate on the basis of their religion under Title VII of the Civil Rights Act of 1964.
6. What is your nationality?
By law, you’re prevented from asking candidates questions regarding their nationality. However, you’re allowed to ask them whether they’re able to work in a specific country.
Under Title VII of the Civil Rights Act of 1964, employers can’t refuse to hire a candidate based on their national origin.
7. How is your financial status?
This is another illegal question. You’re not allowed to discriminate against a candidate based on their financial status. A candidate’s financial status is only relevant if it directly impacts whether they’re able to perform the position they’re applying for.
Similarly, you’re not allowed to ask a candidate about how they manage their finances or whether they own property.
Employers are prohibited from discriminating against candidates based on financial information under federal EEO laws.
Financial requirements can’t be applied in different ways to individuals on the basis of their national origin, disability, religion, race, genetics, color, or age.
Financial requirements can’t be imposed by employers if they don’t help them identify trustworthy and responsible candidates. Similarly, financial requirements can’t be imposed if they disproportionately affect members of a certain national origin, color, sex, religion, or race.
Employers may be required to make exceptions for individuals who can’t meet financial requirements due to their disability.
8. Are you a social drinker?
Under the Americans With Disabilities Act of 1990, you’re prohibited from questioning a candidate regarding their drinking habits.
For example, if the candidate is recovering from alcoholism, their treatment is protected by this Act, and they’re not required to provide information regarding their disability prior to receiving an official job offer.
9. Do you have any children, or intend to have children?
You shouldn’t ask this question because it’s illegal to deny a candidate employment based on them having children or intending to have children. Moreover, asking a woman whether she has children can suggest a bias against a family or marital status.
Similarly, you shouldn’t ask a candidate about their childcare arrangements. This question is discriminatory on the basis of family status.
If you’d like to determine how committed the candidate will be to the position, you can ask different questions.
For example, “What are your available hours?” or “Do you have commitments outside of work that could affect whether you can meet certain job requirements like traveling?”.
10. Have you ever been arrested?
This question is irrelevant unless the candidate was convicted, and whether the arrest has any impact on whether the candidate can perform their work duties or meet the employment requirements.
In some instances, this question has resulted in racial discrimination. Furthermore, being arrested is not proof of guilt.
Federal law provides legal protection to individuals who have criminal records. For example, when employers conduct background checks, they’re required to seek consent from the candidate to perform the check and they must follow further procedures when deciding to reject a candidate’s application on the basis of the background check.
According to the Equal Employment Opportunity Commission (EEOC), employers that use a broad rule to exclude every candidate who has a criminal record may disproportionately exclude Latinos and African Americans, this amounts to illegal discrimination.
Therefore they’ve created rules that state it’s illegal for arrest records to be used as a disqualifying factor for employment.
11. What’s your gender?
This question is illegal as employers aren’t allowed to discriminate against candidates on the basis of this protected attribute under Title VII of the Civil Rights Act of 1964.
This question is only legal if it’s genuinely related to the requirements of the position.
12. What’s your sexuality?
This is an illegal question because asking a candidate about their sexual orientation is unlawful as it falls within gender discrimination which is a ground that employers can’t use to refuse employment under Title VII of the Civil Rights Act of 1964.
13. Do you have a bank account?
14. What is your weight and height?
This is an illegal question because it can relate to an individual’s race, and refusing to hire someone based on their race is prohibited.
Some protected groups are disproportionately restricted in their employment opportunities due to height and weight requirements.
According to the EEOC, height and weight requirements are illegal under federal law if employers fail to prove they’re necessary for the job.
15. How long have you been working?
This question is illegal because employers can use this answer to determine a candidate’s age which could lead to age discrimination.
16. Do you have a maiden name?
It’s illegal to ask a woman this question as it can reveal their marital or family status.
17. Has your name ever changed?
This question is illegal because it can reveal personal information regarding a candidate’s race or national origin.
18. When you were in the military, what type of discharge did you receive?
It is illegal for employers to reject a candidate on the basis that they didn’t receive a general or honorable discharge and instead received an ‘other than honorable discharge’.
19. What is your salary history?
It’s illegal to ask this question in most U.S. states including California, Alabama, and Delaware.
This question is prohibited so that employers don’t discriminate against candidates based on their gender or race as outlined by the United States Census Bureau, women only receive 79 cents per dollar earned by men. Additionally, black women and Hispanic women make less than that.
To avoid discrimination you should outline the position’s salary to the candidate in advance. Through this, you can avoid a candidate making a claim that you adjusted their salary on the basis of their race or gender.
Interview tips (Avoiding illegal questions)
- You should ensure the questions you ask the candidate are relevant to the job description and determine whether the candidate meets the job requirements. For example, if you own a limousine service business you can ask a candidate whether they have a driver’s license.
- You should prepare questions in advance to ensure you obtain the information you need and to avoid asking illegal questions.
- You should avoid questions that are too personal. These questions are unlikely to be relevant in determining whether a candidate is suitable for the job.
- You should be aware that the questions you can ask a candidate can vary from state to state.
Do you have any defense against a discrimination claim?
A defense to a discrimination claim is provided to employers by Title VII of the Civil Rights Act of 1964. This defense is known as the bona fide occupational qualification (BFOQ) defense. This defense is provided to employers by the U.S. Code § 2000e-2.
This defense provides protection to employers where they have asked a candidate a discriminatory question or discriminated against them on the grounds of sex, national origin, and religion. However, color and race don’t qualify as bona fide occupational qualifications.
This defense is only available when national origin, sex, or religion are bona fide occupational qualifications that are required for the regular operation of the specific enterprise or business.
An example of a bona fide occupational qualification is the requirement that a priest is a member of the Catholic faith.
Conclusion – illegal questions
Knowing which questions are illegal questions to ask during interviews will ensure you stay out of legal trouble and avoid discrimination claims being brought against you.
This is crucial because the hiring process is already stressful for hiring managers and job applicants and requires a lot of work.
You can use our employment agreement to start the hiring process if a candidate stands out during the interview process.