While HR departments are aware of questions that are illegal to ask job candidates during an interview, other hiring managers are often not as savvy, and may accidentally open the company to a discrimination investigation and lawsuit. That means that everyone involved in the employee selection process must understand what questions are appropriate to ask a prospective employee, and which can lead to trouble.
“Any question that asks about age, arrests, marital/family status, disability, military discharge, national origin, pregnancy, race, religion, sex, sexual orientation—all of these questions can potentially be tied to potential discriminatory actions by a prospective employer—unless the question is job-related,” said Jeremy Eskenazi, managing principal of Riviera Advisors. “For example, you can ask a candidate the following age-related question: ‘The job requires that the candidate be at least 21 years of age. Do you meet that qualification?'”
In other words, employers cannot ask about anything that would constitute protected status under discrimination law, said Lori Caron Silveira, a labor and employment attorney at Adler, Pollock, and Sheehan.
“Virtually all employment laws apply not just to employees, but to applicants for employment,” Silveira said. “You don’t have to be an employee to file a Title VII claim. Applicants have the same rights. If you’re an applicant for a job and you’re not hired for a protected reason, you have a claim.”
The best advice is to focus on whether or not the person has the qualifications for the job, said Joyce Walker Jones, senior attorney advisor in the office of legal counsel at the US Equal Employment Opportunity Commission (EEOC). “Ask questions that are likely to give you the answers to determine whether or not the person can do what the job requires, like work history and references. When they ask those kinds of questions, it makes it clear that they’re trying to get the best candidate.”
Here are 10 questions that are illegal for employers to ask prospective employees.
- How old are you?
- Are you married?
- Do you have children? / Are you planning to have children?
- What is your sexual orientation?
- What is your religion? / Where do you go to church? ( with an exception for religious organizations)
- Do you have a disability?
- Have you been in the military?
- Where are you from?
- What is your native language?
- Where do you live? / Do you own a house?
The only exceptions to this list can be made when information is needed for a “bona fide occupational qualification.” For example, if an employer is worried that the candidate may not be able to perform the job due to health or disabilities, it may be appropriate to ask how they would perform it, or what accommodations would be needed.
While this is a general list that can be applied across the US, hiring managers should note that some states and cities have different employment laws. For example, states including California, New York, and Massachusetts, and cities including Philadelphia and Pittsburgh, do not allow employers to ask a candidate about their salary history.
There are also questions that may seem innocent, but can lead to discrimination claims, Silveira said. For example, if you ask “What kind of a last name is that?” it could be a way of getting at “What’s your ethnic background?”
“There are some questions that employers think are harmless but may lead to disclosure by the applicant of some information that may make the employer sorry they asked,” Silveira said. For example, if you ask a candidate “What do you do in your spare time?” and they say that they volunteer with an organization related to a specific religion, political view, or group, the employer may assume that they fit into that group. “If you then reject that applicant, the applicant may say, ‘I was rejected because I disclosed this,'” Silveira said.
Even in cases where there was no discrimination intent, these claims are difficult to prove, and many states are pro-employee or pro-candidate, Eskenazi said. This means the possibility of legal costs and time spent are high, he added.
Tips for hiring managers
HR professionals and hiring managers can take a number of steps to ensure that their interviewing practices are fair and non-discriminatory, to build the best work environment.
“It’s human nature for people to sometimes seek out others who are like them,” said Dan Ryan, a member of the Society of Human Resource Managers’ Talent and Acquisition Expertise Panel. “But having a diversity of experiences and background provides for a much stronger workplace.”
Hiring managers should review their job applications to make sure they aren’t asking any illegal questions and are complying with local laws as well, Silveira said.
They should also make sure that job postings are clear on the qualifications needed for the role, and what the company is looking for in a job candidate, said Heather Morgan, a partner at Grube, Brown, & Geidt.
Hiring managers, HR professionals, and recruiters should also receive ongoing training on anti-discrimination laws and hiring best practices, Ryan said.
“Illegal questioning is really one segment of actually having a very robust and professional interviewing process,” Ryan said. “Companies who don’t spend time on that really are hurting themselves, because you’re not going to get the best candidate.”
“Hiring managers should be focusing on what really matters in terms of whether the person is qualified for the job in question,” Morgan said. “They should be focusing on things like experience and skills needed for the job. That’s what will get them what they really want, which is the best qualified person for the job.”
It may also help to provide all hiring managers with a cheat sheet that explains what is and is not appropriate to ask, Eskenazi said.
The bottom line? “If the question is not job related, don’t ask it,” Eskenazi said. “By following that simple advice, you can avoid any possible discrimination concerns.”
NOTE: This article is also available as a free PDF download.
Alison DeNisco Rayome is a Staff Writer for TechRepublic. She covers CXO, cybersecurity, and the convergence of tech and the workplace.