Don’t Ask Illegal Interview Questions

I have conducted thousands of interviews during my time as a residential building materials recruiter and occasionally something comes up that raises my eyebrows. Since interviews can be stressful, I'll usually let one slip-up (unless it is totally egregious) pass. When a candidate continues saying things they shouldn't, I usually end the conversation quickly.

Candidates should be on their best behavior for interviews. If they can't keep it together for 15-30 minutes when they are trying to impress, what are they like the rest of the time?

Do you hold yourself to the same standards?

Did you know there are subjects you absolutely want to avoid? It isn't just that they might be intrusive or off base, they are downright illegal!

Why You Need To Take Care

If you ask illegal interview questions you can be charged with discriminatory hiring practices. If it can be proven you discriminated based on race, color, religion, national origin, sex, birthplace, age, disability and marital/family status, your company will be in legal trouble. To avoid charges, you'd have to prove the question directly matched to a specific job requirement – something that usually fails to meet the legal standards.

Here are some illegal questions and a better way to handle your inquiry – if legally possible.

Don't Ask Illegal Interview Questions

“You are using a cane, what happened? Is your injury temporary?”

  • Avoid this question – you are giving the perception you judged them disabled.
  • You can ask if they are able to perform the necessary, specific functions of the job and that is it!

“I love your accent! How long have you lived in the US?”

  • This touches on national origin. You have no way of knowing where they were born and honestly don't need to know.
  • You could ask “How familiar are you with our customer base?” but nothing about race or nationality.

“What kind of car do you have?”

  • Unless your role requires the candidate to provide their own vehicle for company use, this question shouldn't be asked.
  • It shouldn't matter how the employee gets to and from work – as long as they do.

“Oh, you were in the Army? Have you been discharged? Do you think you will be deployed?”

  • Don't ask about their status or if they could be deployed – USERRA covers this.
  • You could ask “How will your skills and training from your military experience help you in civilian roles?” or “Do you foresee any upcoming events that would require an extended absence from work?”

“Are you married? How many kids do you have?”

  • It has no bearing & you are fishing for potential attendance/punctuality issues. This in no way tells you anything about their ability to do the job.
  • You could ask “The position does require occasional overtime and frequent overnight travel. Does that present any issues for you?”

“What religion are you? Do you have a church you attend?”

  • Again, this is fishing and is religious discrimination.
  • A better way might be “We recognize the following holidays, are you able to work the required schedule?” – But honestly, I'd avoid it totally.

“Have you been arrested?”

  • Arrests cannot determine ability to do the job. Convictions could cause eligibility issues if it directly relates – i.e. Embezzling conviction and you are hiring for accountants. But, this is a sticky subject so tread carefully.
  • You could ask “Have you been convicted of a crime?

What If You Don't Start The Conversation?

A candidate may share information you didn't ask about, that could lead to illegal questions. If this happens, I would acknowledge it and move back to safer territory.

For instance: “I was a stay-at-home parent for 7 years while my wife became a lawyer. I learned a lot of time management and planning skills.”

You could say “Thank you for telling me about the gap in your resume timeline. How have you prepared to return to working outside your home?”

Don't ask about the number and ages of the children or if any have ongoing health problems. You'd be fishing for information on potential time away from work, medical problems and any other host of subjects you should avoid.

When you interview candidates there are great questions to ask, questions that don't help and illegal questions. Take care to avoid illegal questions at all costs!

Guest HR Expert & Contributing Author

Stephanie Winterquist PHR and SHRM-CP has been volunteering with SHRM since 2009, most recently in the State Director role for the ND SHRM State Council. An HR professional for over 15 years, her passion is people. Stephanie has been fortunate enough to work and volunteer with many HR and business professionals.

Talk to us and learn more on how to get better answers from your candidates. 



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