How to Avoid Asking Illegal Interview Questions

The right interview questions can help you understand your job candidates better. You want to know whether their professional experience is relevant to the role, how well they collaborate and communicate with others, and their general work habits. However, certain interview questions are off-limits. They open the door to allegations of discrimination, even if that wasn’t the intention.

The Equal Employment Opportunity Commission (EEOC) has clear guidelines to help employers stay compliant during interviews. An employer can ask questions that are job-related. Some of the things included in that would be their skills, experience, qualifications, strengths and weaknesses, salary expectations, and the reasons for leaving previous jobs.

But questions about these topics if asked in the wrong way can land your company in legal hot water. When interviewing, you should be alert to questions and answers that stray into illegal territory unintentionally.

Interview Questions That You Can’t Ask

Here are some things you're not permitted to ask questions about, as they pertain to protected classes: race, color, religion, national origin, gender, birthplace or citizenship status, whether they’re married, have children, or plan to, and any questions about disabilities, medical history, genetic information, or age. And finally, you can’t require them to submit a photograph with a resume. 

Here's some examples of what inappropriate questions during an interview might look like in practice:

1. “Where does your name come from?” 

   Even if you recognize their surname as being from a certain part of the globe, maybe even a similar one as your family's heritage, this question is a legal minefield. It could pertain to asking about origin, which falls under the grounds of discrimination. 

2. “How old are you?” 

   Age is a protected class, and an applicant could reasonably file a lawsuit insinuating they were passed over for the job because of this.

3. “Are you married?” or, related, “When's the wedding?” 

   Both of these aren't appropriate, even if you see a wedding band or engagement ring. Marital status is protected by the EEOC, so an applicant could accuse you of discrimination if not offered the job.

4. “I see you're pregnant, when are you due?” 

   Even if it's obvious the applicant is pregnant, this question could violate the Pregnancy Discrimination Act. It's also wise to not offer information about the company's maternity leave policy unless it's specifically requested by the applicant.

5. “Is there a history of cancer in your family?” 

   Questions about genetic information are strictly forbidden by the Genetic Information Discrimination Act. Companies have to be very careful here. It's reasonable to require a physical or drug test should your industry stipulate it, but your company should specifically request that the medical provider conducting the physical or test to not ask anything related to family medical history. 

6. “Do you have a disability?” 

   This one might confuse some, because as job seekers know, this question is at the end of every application. However, there's an important distinction. Responding to this question on the application is voluntary, is purely for the company to submit their EEO data, and has no bearing on the likelihood of being selected for an interview. However, if this question is asked during an interview, it creates solid legal grounds for a discrimination claim.

There are two main things to ask yourself: the first is, did you ask the same question to every candidate? And two, was this information voluntarily offered by the employee? For example, if they put the year they graduated college in their education details, then you can reasonably infer their age. If your answer to either of these questions is no, then you need to reconsider your interview screening questions and avoid asking the ones listed above.

Interview Questions That You Can Ask

Many of the questions above can be asked if approached in the right way. The key is that it has to be pertinent information for fulfilling legal requirements or when conducting a background check. 

Here are some other examples of perfectly acceptable interview questions, based on the unacceptable ones listed above.

1. “Are you legally eligible to work in the U.S.?” 

   This, along with requests for proof of citizenship or asking what languages they speak, are perfectly acceptable. They don't reveal country of origin and comply with I-9 data.

2. “Are you over the age of 18?” 

   This is generally included as a box to check on an application, and would be confirmed by a background check, but it's an acceptable question compared to asking for their graduation date or even if they were a member of a fraternity, as it could lead to discrimination based on perceived economic status.

3. “Have you ever been known by any other name?” 

   Even if the candidate says, “I just got engaged/married,” a simple follow-up question like, “When's the big day?” or “What does your spouse do?” can be argued as discriminatory. Asking about whether they've gone by another name, even if they haven't mentioned any upcoming or recent nuptials, can help with a background check or obtaining a complete work history.

4. “Do you have any upcoming commitments that might interfere with the schedule we've discussed?” 

   Information regarding pregnancy or parental status should be offered voluntarily, and this is a question that can legally reveal that information. Then discussions can be had based on maternity leave or childcare responsibilities that can affect their schedule.

5. “Are you able to perform all of the functions of the job as they've been described?” 

   This is where the Americans with Disabilities Act comes into play. Should this person need a reasonable accommodation to do the job, they can request one. Your company isn't allowed to ask about whether there's a history of cancer in their family or directly ask if they have a disability during the interview. But a question like this can start the interactive process so the company and the interviewee can agree on the best way to accommodate them. 

There are many more examples of questions you can and can't ask during the interview process, and even to a current employee. Your company's HR rep should be well-versed in these stipulations, but everyone should understand the basics of what constitutes discrimination or harassment in a work environment.