- Date: September 17th, 2007
- Author: Suzanne Thornberry
Although HR departments should be aware of questions that are illegal to ask prospective employees, some hiring managers aren’t so savvy. Many illegal questions are easy for just about anyone with elementary social graces to avoid, but others might surprise you. In general, you should not ask interviewees about their age, race, national origin, marital or parental status, or disabilities.
Note that this list offers only some very broad guidelines and is not exhaustive. Check with your company’s HR department to see if your state or locality, or even your company, has additional restrictions on what you may ask.
#1: Where were you born?
This question might seem like small talk as you get to know a person, but it could also be used to gather information illegally about the candidate’s national origin. Although it may seem more relevant, you should also avoid asking, “Are you a U.S. citizen?” You can ask whether a candidate is authorized to work in the United States, but avoid asking about citizenship.
#2: What is your native language?
Again, the problem is that this question could be used to determine national origin. You can ask whether the person knows a language if it is required for the job. For example, if job responsibilities include supporting Spanish-speaking customers, it’s fair to ask whether the candidate speaks Spanish.
#3: Are you married?
Here’s another question that would seem innocent in most settings, but definitely not in a job interview. Because you can’t discriminate on the basis of marital status, this question is off limits.
#4: Do you have children?
This might sound like small talk, too — an innocent question in most settings — but not in a job interview. It’s covered by a general prohibition about discrimination over parental status.
#5: Do you plan to get pregnant?
In the past, employers sometimes asked this question to weed out women who might take a maternity leave. It has always been rude coming from a casual acquaintance, and now it’s illegal as well.
#6: How old are you?
Some companies used to avoid hiring older workers for a variety of reasons, ranging from a fear of higher healthcare costs and absences to a social bias in favor of youth. But age discrimination is clearly illegal, and you should avoid this question. Don’t try to get the information by asking when the person graduated from college, either.
#7: Do you observe Yom Kippur?
You can’t discriminate on the basis of religion, so this question is illegal, as would be asking about Good Friday, Ramadan, or the Solstice. If you’re concerned about the candidate’s availability, you could ask whether he or she can work on holidays and weekends, but not about the observance of particular religious holidays.
#8: Do you have a disability or chronic illness?
This information is not supposed to be used as a factor in hiring, so the questions are illegal. If the job will require some specific physical tasks, such as installing cables in walls and ceilings, you may ask whether the person could perform those tasks with reasonable accommodation.
#9: Are you in the National Guard?
Although some managers may find it disruptive when employees leave for duty, it’s illegal to discriminate against someone because he or she belongs to the National Guard or a reserve unit.
#10: Do you smoke or use alcohol?
In general, you can’t discriminate on the basis of the use of a legal product when the employee is not on the premises and not on the job.
Tip: To avoid asking the wrong questions, develop an interview form and use a copy of it for each candidate. It will document that you asked each interviewee the same questions. Failing to do so may establish a pattern that could seem discriminatory. For example, if you ask only women about their willingness to travel, thinking that the responsibilities of childcare would make them balk at business trips, you could establish a pattern of discrimination.
