Illegal Interview Questions

Learn what potential employers may and may not ask you in an interview.

To prepare for a job interview, most applicants practice their answers to a handful of tried-and-true questions about their skills, accomplishments, faults, and suitability for the job. You should also be prepared to explain any negatives, such as a gap in your resume, a lukewarm reference from a former boss, or lack of experience in the field.

One thing few applicants are prepared for, however, is illegal interview questions. An illegal question is one that seeks information the employer is not entitled to request and/or not entitled to use as a basis for job decisions. Most illegal questions cross the line by inquiring about protected characteristics, such as race or religion, which could be used to discriminate against the applicant.

Race, National Origin, and Citizenship

Any questions about your race, ethnicity, or citizenship status in the United States are firmly off limits. Employers are not allowed to use these facts as a basis for job decisions. Sometimes, these questions are innocent and may not concern you (“what a lovely accent; where are you from?”). Even so, you shouldn’t have to answer them and later worry that this might have been the reason why you weren’t hired.

An employer might be legitimately interested in information that could relate to race or ethnicity. For example, a job might require fluency in a certain language, familiarity with certain countries, neighborhoods, or customer demographics, and so on. If these facts are relevant to the job duties and requirements, the employer may ask about them – but not using race or national origin as a proxy. In other words, an employer may ask, “are you fluent in Spanish?” but not “are you Mexican?” Similarly, an employer that sells products imported from Japan may ask whether you are familiar with the products, but not whether you are Japanese.

Gender and Family

Questions about your gender and about whether you have children (or plan to) are also forbidden. It’s possible that an employer might ask what gender an applicant is, if the applicant is transgender or doesn’t conform to gender-based stereotypes about appearance. Such questions are illegal. The Equal Employment Opportunity Commission has held that discrimination on the basis of gender identity and transgender status violates the sex discrimination provisions of Title VII. Courts are in disagreement over this particular issue, but the safest course of action is to avoid these types of questions. Many states specifically prohibit discrimination based on gender identity as well.

Gender-based questions may come up in interviews for positions or industries that have traditionally been dominated by one gender, such as when a man applies for a nursing or caregiving position, or a woman applies for a construction or sanitation job. Comments like “I hope you’ll be comfortable as the only woman on the crew” or “the nurses sure will be glad to have a man around” improperly suggest that the interviewer is considering gender when making decisions.

Questions about family are also off-limits, particularly when they suggest or assume that a female applicant will not be fully available for work due to parenting or caregiving responsibilities. Questions about your plans to have children, plans for daycare, who takes care of your children while you work, how old your children are, and so on are all problematical.

Of course, an employer may have legitimate questions about an applicant’s ability to travel, work overtime, or work productively at home without interruptions. If so, the employer may ask about these job-related facts directly. For example, an employer may say, “This job requires overnight travel several times a month, for two or three days at a time. Is that something you can commit to?” However, an employer may not ask, “who is going to take care of your children while you are out of town?” Worse, an employer may not assume that you won’t travel because you have children. And, an employer may not ask about your plans to have children.

Age and Experience

Your experience, qualifications, and degrees are certainly relevant and fair game for an interview; your age is not. Questions like “what year did you graduate from college?” have no place in an interview, because they are such an easy proxy for age. Of course, certain relevant facts may reveal basics about your age. If your resume indicates that you worked for your last employer for 20 years, that alone tells your new employer that you are probably over 40.

Problems tend to come up here when the applicant is older and the field is perceived as youthful or cutting edge. Some employers still labor under the stereotypes that an older person doesn’t know about the latest technologies, isn’t interested in music, fashion, or trends, and so on – even if that’s the applicant’s chosen field. Witness the Google employee who was told that he should replace the CD jewel case he used as an office placard with a vinyl LP. Wow, that’s a funny one.

Religion

Questions about an applicant’s religion shouldn’t come up in an interview. The same goes for questions about the religious significance of an applicant’s apparel, jewelry, hairstyle, and so on. An employer who is concerned about whether an applicant’s beliefs will interfere with scheduling and other legitimate work issues can simply ask about that. For example, rather than asking, “do you observe a Sabbath day?,” and employer ask whether the applicant is available to work occasional weekends, if that’s a job requirement.

Disability

Employers may not ask about a disability or ask whether you have one. This is true even if your disability is evident (for example, because you use a wheelchair). Questions about your current health, past injuries or illnesses, or what medication you take are inappropriate. Because alcoholism and a history of drug addiction may qualify as disabilities under federal law, questions about past alcohol or drug use are off limits as well.

Employers may, however, ask whether you can perform the essential functions of the job. They can even ask you to demonstrate how you would perform those functions. (For detailed information on the types of questions that are and are not legal in an interview, see the EEOC’s Enforcement Guidance on Pre-Employment Disability-Related Questions and Medical Examinations.)

Some applicants with obvious disabilities choose to be proactive in interviews. Rather than sitting on the right to not discuss their disability, an applicant might figure it’s better to talk about it up front and explain why it won’t prevent the applicant from doing a great job. This can be a good strategy, particularly if the job and disability are such that an employer might assume otherwise. (For more information on disability discrimination in the hiring process, see Getting Hired With a Disability.)

Other Illegal Interview Questions

The following topics are other examples of questions that employers should be wary of asking in an interview:

  • Sexual orientation. Many states make it illegal to discriminate based on sexual orientation. The EEOC also takes the position that sexual orientation falls under the protections of Title VII of the Civil Rights Act. As with gender identity discrimination, this issue is being worked out by the courts and not entirely clear. However, the safest course of action is to avoid any questions having to do with sexual orientation.
  • Arrest or conviction records. In several states, ban-the-box laws make it illegal for employers to ask job applicants about their criminal history until after making a conditional offer of employment. The EEOC also warns employers against relying too heavily on criminal history, particularly arrest records, as this practice can have a discriminatory effect on members of certain protected groups, such as African American or Latino men.
  • Salary history. In an effort to end discriminatory pay practices, a handful of states and cities have passed laws prohibiting employers from asking applicants about their current or past salaries.

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