The U.S. Equal Employment Opportunity Commission (EEOC) has strict laws in place to protect job candidates and employees from discrimination. You should avoid asking job interview questions about age, disability, genetic information, race or ethnicity, gender identity or sexual orientation, national origin, religion, marital status, having children, pregnancy, or planning to start a family.
You can stay in the EEOC’s good graces by avoiding questions that can appear to be discriminatory — ones that relate to where a candidate lives, their age, their arrest record, national origin, credit history, family status, financial status, marital status, pregnancy, race or color, religion, gender, or sexual orientation.
Sometimes, though, you may need to cover some sensitive topics—like availability, legal convictions, physical health, and education — to decide if a candidate is fit for your job. When you do, be careful about how you discuss them. Specifically ask candidates about their ability to carry out exact tasks and responsibilities that relate to the job.
Here are some good rules of thumb to avoid the appearance of discrimination when hiring:
Stay away from anything that isn’t related directly to the job.
Resist the temptation to delve into personal conversation.
Don’t ask about anything you can learn from another source or in another way.
Be direct about what traits and skills they’d need for the role and ask the candidate to speak to those things.
8 Illegal Interview Questions You DON’T Want to Ask
While some illegal questions like “How old are you?” are more obvious, others are less so. Some questions masquerade as “cultural fit” questions, and others simply pop up when you let the interview meander off into small talk. If you’d prefer never to deal with the EEOC, then remember the rules of thumb from above, and avoid letting your interview conversation head toward questions like these:
1. “What Part of Town Do You Live in?”
This seems like a harmless question — one that would be asked out of curiosity — but it could be interpreted as an attempt to figure out if a candidate lives in a part of town where mostly minorities live. It’s best to avoid it. If you want to know whether they live nearby because punctuality is important to you and traffic is heavy where you are, then ask candidates if there’s any reason they might not arrive to work on time each day.
2. “What Class Were You in at Rydell High?”
While you may ask a question like this simply because you found something in common with your candidate, it’s no longer innocent when you go in a direction that could help you figure out their age. The Age Discrimination in Employment Act (ADEA) prohibits any interview questions that could indicate age discrimination.
3. “Being a Start-Up, We Tend to Have Younger Managers. Would That Be a Problem?”
This is another indicator of potential age discrimination. While it may seem like a valid question about whether you and the candidate will work well together, by asking this question in this way, you imply that you’ve noticed the applicant’s age and see it as a potential reason not to hire them. A better way to ask this is by leaving out references to age altogether. You could say, “Would you be comfortable taking direction from someone who has less on-paper business experience than you do?”
4. “When Was The Last Time You Used Drugs?”
Businesses are not allowed to discriminate against recovering addicts or people who take prescription drugs for health conditions, so your questions must pertain to the current use of illegal drugs. Better yet, follow the rule of thumb not to ask something you can learn from another source. Strike this question from your interview list altogether and simply ask candidates whether they are comfortable taking a drug test prior to and during their employment.
5. “Have You Ever Had a Brush With the Law?”
Asking candidates for information about their arrest record is a no-go zone. The EEOC notes that statistically some minorities are arrested more often, so a question like this could lead to underlying racial discrimination. If you need to assess whether your accounting candidate is trustworthy, you can ask if they’ve ever been convicted of fraud. Ask references whether the candidate was ever disciplined for violating company policy.
6. “I Hear An Accent. Where Are You From?”
You may just be curious, but when it comes to national origin discrimination, this question is a red flag. Asking it could hint that you might discriminate against a potential employee due to their accent or the fact that they may be from a different country. If language fluency is important in the role, ask candidates direct questions about which languages they are fluent in. You can also formally evaluate their communication skills as part of your interview process. Just don’t ask them if they’re native speakers or whether English is their first language.
7. “How Many Kids Do You Have?”
Even if you’ve gone in to the small talk zone with a candidate who has already mentioned having kids, don’t ask this. In fact, even if you’ve already related to each other about having kids, try to avoid asking any further questions around this topic. Asking candidates about their children or if they plan to have children can signal discriminatory hiring practices.
8. “What Are You Currently Making?”
If your business is in NYC, Philadelphia, Massachusetts, Delaware, California, Oregon or Puerto Rico, there is a salary history ban. The ban is limited to certain areas — and sometimes only publicly held companies — for now, but this trend is likely to continue. In fact, lawmakers are already pursuing bans on employer inquiries about salary history in Pittsburgh and New Orleans, so if asking candidates about their previous salaries is one of your go-to questions, you may want to drop the habit sooner rather than later. Instead, ask candidates about their salary expectations.
Other Interview Practices That Can Get You Into Trouble
It’s not just illegal interview questions that can come back to haunt you. You also can cross legal lines when you do the following things while interviewing:
Making Promises You Can’t Keep
When trying to win over your favorite candidate, it can be tempting to hint at all they could achieve and acquire while working for you, especially if you’re a small start-up with huge potential, but be careful. If you imply a specific career path or promise long-term job security, you could end up with a lawsuit. Don’t say things like, “I could really see you growing with my company. Who knows? If we do well, you could be VP of Marketing and build your own team in the next three years,” or “With your skills and our culture of internal promotion, you could happily work here for the rest of your career.”
Neglecting to Use a Standard Set of Questions for Every Candidate
Why is this bad? Because if a candidate finds out you asked them a question that you didn’t ask most other candidates, they’ll probably wonder why. And their deductions may lead them to believe you discriminated against them in your hiring decision. Asking only female accounting candidates about their availability to work longer hours at month end, for instance, points toward potential gender discrimination. Avoid these situations by using a regular list of questions that cover the basics. Only vary questions when it comes to specific items in a candidate’s background, skills, or experience.
The appearance of discrimination is terrible for your reputation, and the related legal battles aren’t easy on the wallet either. Avoid being accused of discriminatory practices by understanding the ins and outs of what is and is not allowed in interviews. It is possible to conduct your job interviews in a fair, legal manner and still land strong new hires. Who knows? Maybe you’ll even hire someone amazing — someone you might have overlooked otherwise.
-Anne Shaw, The Hartford
If you have any questions or concerns about a job interview, please contact us for your free consultation.
