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50 Illegal Interview Questions in 2021
If you as an employer ever had to wonder whether an interview question was inappropriate, you need to pause and take stock of your interviewing practices and standards. Most HR experts and companies unwillingly ask illegal interview questions as they try to find the best person for a job or know a candidate better. However, ignorance of the law does not protect an employer from lawsuits and other legal troubles if push comes to shove. To avoid making costly mistakes and putting your company and job applicants in uncomfortable positions, we present you with 50 illegal interview questions to avoid asking in 2021.
Illegal Interview Questions: Inquiry Areas to Avoid
All organizations have to follow the set of standards issued by the Equal Employment Opportunity Commission (EEOC) to ensure a fair, non-discriminative, legal, and ethical interview process for all candidates. As usual, some states (and even cities) have their own rules regarding the type and content of interview questions. The COVID-19 pandemic also changed the game when it comes to interviewing candidates, so recruiters now walk on thin ice.
Employers should never ask some interview questions that, by content or purpose, could reveal information that one can use to discriminate against applicants. Most such illegal interview questions pertain to the following areas:
- Birthplace, race, citizenship, national origin, ethnicity;
- Gender, gender identity, sexual orientation, etc.;
- Family and marital status;
- Pregnancy (existing or planned);
- Medical information & genetic background;
- Household situation;
- Religion and church attendance;
- Arrest record;
- Military status;
- Financial information.
As we said, the laws in place come with exemptions and addendums. The general idea is that employers could ask some otherwise illegal interview questions if they can bring irrefutable proof that the answers are relevant to the job description or have a bearing on an individual’s ability to perform a particular job.
Experienced HR specialists and companies know how to avoid the most common hiring mistakes. Posting specific and detailed job descriptions is a surefire way to avoid asking candidates improper or illegal questions during the meeting. Seasoned recruiters also know how to extract the relevant information from a candidate’s resume to skip the uncomfortable and unlawful part of turning an interview into an interrogation.
I. Illegal Interview Questions Regarding Race, Nationality, Ethnicity
Here are some illegal interview questions that might come off as discriminant, even if you want to learn more about an applicant. It is best to avoid such problems altogether.
1. What country are you from?
2. Do you have citizenship?
3. Where do you live?
4. What is your current address?
5. Are your parents born in this country?
6. What is your native language?
7. What is your accent?
8. What is your cultural background?
When it comes to Title VII violations, you must be very careful what questions you ask and how you ask them. According to the job description, if you need people that speak foreign languages, you can ask them about their proficiency and communication skills in those languages. If long commuting is an issue, ask candidates if they will be able to make it to work every day at the regular hour with no effort.
Asking questions regarding race or ethnicity is all right ONLY for affirmative action programs. Still, you have to make things very clear, never ask such questions casually over the phone, and get legal counsel before conducting the interview.
II. Illegal Interview Questions Regarding Age
Ageism is a serious issue globally, so the laws against age discrimination at the workplace have become even stricter than before. For safety, you should always check the Age Discrimination in Employment Act (ADEA).
If a candidate did not mention age or a birth year on the resume, it is best to avoid all direct or indirect questions related to their age:
9. How old are you?
10. When were you born?
11. When did you graduate high school/college?
For some jobs, age is a bona fide occupational qualification (BFOQ). A person should be at least 21 years old to work in a bar, while another employee should not be over the mandatory retirement age to drive a bus. However, it would be best if you never asked direct questions related to age.
III. Illegal Interview Questions Regarding Gender, Gender Identity, Sexual Orientation
When it comes to gender, identity, and orientation, the laws are rigorous and specific. Gender/sex discrimination is illegal. In some cases, an organization can hire only males or females under the bona fide occupational qualification exception but only if it proves that almost all excluded class members cannot perform the job’s function. Otherwise, it is illegal to discriminate on sexual orientation and other gender-related criteria. So, here are some questions you should never ask:
12. What gender do you identify with?
13. What is your sexual orientation?
14. Have you ever had transition treatments or surgery?
15. What is your position/views on LGBTQ rights?
Unless otherwise specified by your legal advisors, refrain from asking any direct or indirect questions that can tie to discrimination based on gender/identity/orientation, religious, and even political views.
IV. Illegal Interview Questions Regarding Family and Marital Status
Employers should never ask about a candidate’s family or plan to have one. If the applicant does not mention anything about marital status, children, family members, etc., you should not ask anything along the lines of:
16. Are you single/married/divorced?
17. What is your maiden name?
18. Are you in a long-term relationship?
19. Do you have children?
20. What are your children’s ages?
21. Who is taking care of your children while you work?
In the context of the pandemic, more and more employers ask family-related questions that are illegal. If you want to learn whether a person can perform the job while working from home and caring for the children who attend online classes, you should rephrase the questions accordingly. Have legal counsel look over the interview questions before you meet the candidates.
V. Illegal Interview Questions Regarding Pregnancy
The law protects women – see for reference the Pregnancy Discrimination Act (PDA) – from all types of discrimination related to their existing or planned pregnancy. Note that you cannot ask anything about it even when the candidate is visibly pregnant. Here are some questions to avoid:
22. Are you pregnant?
23. Have you made any child care arrangements yet?
24. Do you plan to have children soon?
When they ask women questions about their pregnancy and family status/plans, employers risk tapping into sexual orientation discrimination. Recruiters, even if they try to be friendly and learn more about a candidate they genuinely like, should avoid questions regarding the spouse’s name, methods of conception, existing or planned childcare, and parenthood in general, and so on.
VI. Illegal Interview Questions Regarding Medical information & Genetic Background
Medical information should never make a job interview’s subject unless the job in question presents health hazards recognized by injury laws. In this situation, your legal team will advise you on disclosing such information to candidates and asking them about their health status in an ethical, lawful manner. Other than that, it would be best if you refrained from any medical/genetic discrimination. Avoid any of the following questions:
25. Did you take any sick days or extended medical leave in the recent past?
26. Do you have a chronic medical condition we should know about?
27. Has anyone in your family been diagnosed with cancer/heart disease, etc.?
28. What is the health status of your parents/relatives?
29. Do you have a history of genetically transmitted physical or mental diseases?
30. Did you file a workers’ compensation claim/work injury claim in the past year?
Keep in mind that it is illegal to conduct dedicated Internet searches related to a person’s medical file or family’s medical history and disseminate such information at the workplace. In some conditions, it is reasonable to ask a candidate about back health issues if you are offering a construction job, but discuss matters with your legal team before.
VII. Illegal Interview Questions Regarding Disability
According to the Americans with Disabilities Act of 1990, it is illegal for employers to discuss disability at a hiring interview. Here are some questions you should avoid at all cost:
31. Do you have any physical or mental disabilities we should know about?
32. How did you lose your arm/leg?
33. Have you filed a disability claim in the past year?
One acceptable way to go about disability during the interview is asking the applicants if they could perform the job’s essential responsibilities in the presence of proper accommodation, which you must offer under the law.
VIII. Illegal Interview Questions Regarding Household Situation
In the pandemic context, employers worry about a person’s attendance, reliability, focus, commitment, stress levels, and more. While such questions are in a relatively gray area when it comes to their lawfulness, it is better to avoid them:
34. Are you financially responsible for any dependents?
35. Does your spouse have a job?
36. Who do you live with?
37. What is the relationship between you and the people you live with?
38. Who is supervising the children’s online schooling?
If you want to know such answers, have your legal team draft the questions so they don’t tie in with marital status & family, pregnancy, sexual orientation, financial situation, etc.
IX. Illegal Interview Questions Regarding Religion and Church Attendance
Religious discrimination is a grave issue that all employers should avoid. Here are some questions that might throw you in a world of trouble if you ask them:
39. What religion are you?
40. What is your denomination?
41. What church do you go to?
42. Will you need days off for religious holidays or practices?
43. What days do you worship/do not work due to your religious affiliation?
The exception here is religious organizations, which can factor in a candidate’s religion in their interview process and hiring decision. Other than that, non-religious organizations should not tap into an applicant’s faith, beliefs, spirituality, religious and cultural background, church-going habits, congregation, etc.
X. Illegal Interview Questions Regarding Arrest Record & Convictions
Depending on the state, an arrest or conviction record cannot legally disqualify a candidate from employment unless it directly connects to the job in question. People convicted of statutory rape are usually prohibited from getting a teaching job. Similarly, a person convicted of fraud will not likely get a job as a company’s financial manager. Nevertheless, here are some questions that are illegal, no matter the state:
44. Have you ever been arrested for anything?
45. If you committed a crime, what was it?
Your legal team should ensure you are working within the boundaries of the law when asking candidates about prior arrests/convictions if the job is sensitive or related to potential crimes.
XI. Illegal Interview Questions Regarding Military Status
Military status is a federally protected class, so employers cannot make hiring decisions based on a person’s past, present, or future military quality or service. It is better to avoid all talks about this issue. Avoid these questions:
46. What is your military discharge status?
47. When do you expect a future deployment?
Employers can ask some questions about service or military status when they run affirmative action or veterans’ support programs. As always, discuss matters with your company’s legal advisors.
XII. Illegal Interview Questions Regarding Financial Information
It is illegal in some states and cities to ask a candidate about their financial status. While background checks are legal, someone could make a case for discrimination on the grounds of race, ethnicity, gender, marital status, etc., if such questions arise during the interview. Under any circumstance, you should not ask the following questions:
48. Do you rent or own your home/car?
49. How much did you earn in your previous job?
50. Do you have any outstanding debts?
You could ask for information about a person’s credit score only after receiving that person’s permission. For safety, check the Fair Credit Reporting Act. In New York City, the law prohibits employers from asking applicants about their past salary history as well, so make sure you know the law inside out.
Recruiters and companies have plenty of legal means to find out more about their candidates and future employees. Background checks are satisfactory as long as you inform the applicants you are going to perform them. Follow the legal procedure and ask for references in the right places. You can easily avoid asking illegal interview questions that can generate awkward situations for everybody or worse, lawsuits.
You should always work with versed recruiters and HR specialists as well. As simple as a hiring interview seems, it is a process requiring mindfulness, attention to detail, and research. The main idea is to avoid asking anything that does not have a bearing on the job. If you consider that some questions regarding age, gender, medical history, or national origin are BFOQ, make sure you make the appropriate inquiries without crossing the line.
Do you have other examples of illegal interview questions or inappropriate ones that you asked or have been asked during an interview?
We’d LOVE to hear your thoughts on this!
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