When was the last time you reviewed your typical list of interview questions? It might be that a few are outdated and could get your business into legal trouble, such as allegations of discrimination or an investigation by the U.S. Equal Employment Opportunity Commission (EEOC).
Federal and state laws prohibit a number of interview questions on grounds of discrimination. With this in mind, we will walk you through nine topics that are strictly off-limits versus some that may be asked if you have a legitimate reason to know the answer. Although you should tread very carefully, you may be able to reframe your questions to avoid discriminatory topics.
Read on to learn all about what you can and can’t ask in an interview and for some additional insight into interviewing do’s and don’ts.
Illegal Interview Topics
The list below gives an insight into the topics that you should avoid when conducting an interview. There may be some instances where the topics mentioned could be connected to actual pertinent information. In those instances, there are proper ways to handle the information.
1. Age
Even though it may seem like a harmless question on the surface, you should never ask an interviewee about their age, including when they graduated school or how long they’ve been working, as it can be seen as age discrimination.
According to the EEOC, the Age Discrimination in Employment Act (ADEA) “forbids age discrimination against people who are age 40 or older.” Workers under the age of 40 are not protected, except in some states.
As an interviewer, you must be careful not to favor a younger candidate over an older one within the pool of candidates you are considering based on their ages. This is what age discrimination laws are intended to prevent. If you favor an older applicant over a younger one, this is generally OK, even if both of these candidates are older than age 40. Regardless, it is most important that you treat either older or youngr canidates fairly.
How to approach the topic (if it’s necessary):
To avoid getting involved in any legal issues, it is best to not ask for a candidate’s age and instead to rely on their experience as mentioned in their resume. However, it is legal to make sure that an applicant is of legal age to work for your company, typically 18 years or older.
2. Citizenship
According to the Immigration Reform and Control Act of 1986 (IRCA), it is illegal for any employer to discriminate with respect to recruitment, referral, hiring, or firing based on someone’s immigration status or citizenship status. This means that if someone has recently immigrated to the U.S. (assuming proper documentation is in place), you cannot deny them work just because they are not a citizen or deny it until they become one.
How to approach the topic (if it’s necessary):
U.S. citizenship is a requirement for some jobs, such as government work or jobs with other such regulations. These jobs have laws and regulations that limit hiring to U.S. citizens only. However, most other employers cannot ask the citizenship status of potential employees. You can ask whether they are legally eligible to work in the U.S. and require proof of eligibility if selected for hire.
3. Disability Status
Employees of, or those applying to, companies both private and public sector are protected from disability discrimination by Title I of the Americans with Disabilities Act (ADA).
Employers cannot discriminate or make decisions related to hiring, firing, pay, promotions, layoffs, job assignments, fringe benefits, or training based on someone’s disability status. They must also provide reasonable accommodations for them.
The ADA defines a disability in part as “a physical or mental condition that substantially limits a major life activity” or a history of such a condition.
Accommodations, as the law defines it, are employer modifications that make the job possible to do for someone with a specific disability. Such accommodations must be “reasonable,” that is, not overly burdensome to the employer. They include things such as increased wheelchair accessibility, schedule adjustments, or interpretive services for those who are visually or hearing impared.
How to approach the topic (if it’s necessary):
Some jobs require employees to be able to physically exert themselves to a certain degree. To properly vet an employee to make sure they are capable on their own or with an accommodation, here are examples of questions that may be asked on a job application for the safety of the employer and applicant:
- This job requires you to lift 25-pound objects. Can you perform the essential functions of this job, with or without accommodation?
- You will be required in this job to stand for 2 hours at a time without leaving the front desk. Can you perform the essential functions of this job, with or without accommodation?
4. Genetic Information or Medical History
According to Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), it is prohibited to discriminate against any employee because of their family medical history, their own medical history, or their genetic information.
Employers cannot use an individual’s genetic information in making employment decisions or granting rights afforded to other workers. For example, if you learned that a job candidate has a family history of heart problems, you could not deny them employment because they may have heart problems in the future and miss work.
How to approach the topic (if you feel it’s necessary):
You cannot ask for a family medical history or genetic information of an individual during an interview. However, there are some very specific exceptions to this rule. For example, certain jobs may need to monitor employees for toxicity or exposure levels and may need to perform medical tests. Medical information could also come out voluntarily during health initiatives that the company may be running.
5. Gender or Sexual Orientation
In 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 applies to gender identity and sexual orientation. This means that discrimination based on someone’s transgender status, use of personal pronouns, or sexual orientation violates Title VII’s protection against sex discrimination.
How to approach the topic (if it’s necessary):
While gender identity or sexual orientation is rarely a necessary question, the stating of pronouns is becoming more common. According to an article by Kate Tornone, lead editor of HR Drive, one best practice is to have open fields, such as “Name” and “Pronouns,” on application forms. This allows potential employees to be open with their employer as much as they feel comfortable.
6. Pregnancy
Even if a person arrives for an interview visibly pregnant, they are protected from being outright denied the job because of their pregnancy under the Pregnancy Discrimination Act (PDA), which forbids any discriminatory actions or decisions because of pregnancy. The interviewee might reference the pregnancy and ask about family leave and health benefits. However, it’s still not best to ask anything. Just focus on the facts you can provide and the questions relevant to the job qualifications.
How to approach the topic (if it’s necessary):
Unless the job requires physical components that a pregnant person cannot perform, you probably just shouldn’t touch the topic. Even in the foregoing case, you can ask, for example, “this job requires you to be able to lift X lbs, is that something you can do?” As with disability status, focus on the demands of the role without bringing up pregnancy. As mentioned above, if a potential employee asks about family benefits, then point them to your company’s policies. You also cannot ask about a candidate's marital status or if they currently have kids, but can inquire after hiring for insurance purposes.
7. Race or Ethnicity
Race or ethnic discrimination is when an employer favors one candidate over another because of their cultural or ancestral background. This type of discrimination can occur because of someone’s accent, appearance, or perceived ethnicity.
If an applicant does not speak fluent English at the time of the interview, you cannot require that they learn it to obtain the position, unless they could not do the job without it. According to the federal law regarding language, “an employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively.”
How to approach the topic (if it’s necessary):
The simple answer is don’t. Inquiring about race or ethnicity opens you up to a potential major legal issue, so it is best to avoid the subject altogether and focus on the applicant’s qualifications.
8. Religion
Religious discrimination occurs when an employer treats their employee unfavorably due to their religious beliefs. If anyone holds a bona fide ethical, moral, or religious belief, they are protected, even if they don’t associate directly with a specific religion.
How to approach the topic (if it’s necessary):
You cannot ask directly about an applicant’s religious beliefs. As with any applicant, clearly state all aspects of the job, including required work hours, responsibilities, and dress code expectations. If an applicant has any religious reasons to object to one or more of these aspects, it is up to the employer, should the applicant be hired, to make reasonable accommodations for the employee. These accommodations must be met unless it would cause undue hardship to the employer. Examples of accommodations include allowing time for religious observances and allowing employees to wear clothing items connected to their faith, such as a Jewish yarmulke or a Muslim headscarf.
9. Salary
Many states and local governments do not allow you to ask interviewees about their salary (e.g., California, Delaware, Massachusetts, Oregon, New Orleans, New York City, Philadelphia, and Pittsburgh). This means you can’t ask a person what they currently earn or about their salary history. Some states,though, have actually banned the bans, meaning that governments cannot regulate what an employer can ask about salary.
How to approach the topic (if it’s necessary):
If your business is based in a state and/or city that has a ban on salary questions, make sure you adjust your interview questions accordingly. To get an idea about potential salary while still avoiding legal trouble, ask a candidate what their salary goals and expectations are. This can give insight into how they value themselves and how your position’s offers compare.
How Employers Are Allowed to Ask About COVID-19 Vaccination Status
According to the Society for Human Resource Management (SHRM), there are several ways an employer may inquire about someone’s vaccination status, but not in all areas. It is important to look into what state and local laws say about inquiring about vaccination status. The CDC highly recommends that healthcare workers be up-to-date on several of their vaccinations.
Currently, employers can mandate that workers be vaccinated to enter the workplace. Because there may be a genuine business reason for asking the question, an employer may ask about an employee’s vaccination status. However, employees should always be given the option to decline to answer. According to the EEOC, employees and applicants have the right to decline to confirm the status of their vaccination for any reason. If they do decline to answer, then unless the employer has a vaccination requirement, they cannot press further into the issue.
Final Thoughts
When interviewing job candidates, you always want to ask the right questions. This means not only finding out about applicants’ qualifications but also about staying on the right side of discrimination laws. Following your instincts might be helpful when hiring the best person for the job, but be careful about using your instincts alone when choosing interview questions. Instead, make sure you stay up-to-date on discrimination laws and double-check that your questions do not fall into any gray areas, so you can focus on training your new hire!
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