To ensure you have the right people at your company, you want to make sure you are making the right hires – both based on ability and if they will fit your company culture. Certain questions, however, are illegal to ask about on an application or during a job interview.
Questions Prohibited by Federal and State Law.
Numerous federal and state laws prohibit employers from asking questions either on an application or during an interview that request information that could be considered discriminatory or provide information that could lead to discrimination against a job candidate. Check your applications to ensure you do not ask questions related to:
- Age
- Race
- Ethnicity
- Color
- Gender
- Sex
- Sexual orientation or gender identity
- Country of origin
- Birthplace
- Religion
- Disability
- Marital status
- Family status
- Pregnancy
- Salary history
- Union activity
- Previous injuries (whether on or off the job)
Not only must you not ask these questions on an application, but an employer should also train every employee who participates in interviewing applicants about what questions must be avoided.
Common Illegal Questions
When you are interviewing a job candidate, you might be trying to make small talk and get to know the person – or put them at ease – by asking some personal questions. While this might help you get to know the person, you cannot ask certain questions, as their answers might be used against the applicant.
This can be difficult to avoid. Some of the most commonly asked illegal questions are:
- Are you married? This might be an easy ice-breaker question, but it is on the “do not ask” list. The answer is irrelevant to how a candidate would perform at a job. Plus, it can lead to possible discrimination claims if the person reveals they are in a same-gender marriage. A person’s sexual preference cannot be asked about during an interview and cannot be held against a person.
- Do you have children or do you plan to have children? Again, this is a great get-to-know-you question. However if they tell you they have three children under five, or are planning to start a family, you might be worried if the applicant will have time to dedicate to the position. Instead, ask what hours the applicant can work.
- How old are you? You cannot ask a job candidate their age. The Age Discrimination in Employment Act protects workers over 40, so asking an older candidate’s age can lead to a lawsuit. Likewise, companies should omit questions from their applications and avoid asking during an interview about the dates of any military service or graduation from school as such questions can elicit information that the candidate is over 40.
- Do you have a disability/past injury/previous worker’s compensation claim? Candidates are covered under the Americans with Disabilities Act, so you cannot discriminate against applicants with disabilities or previous injuries at the pre-offer stage. Likewise, employers cannot ask about an applicant’s family member’s medical conditions as inquiring about such information would violate the Genetic Information Non-Discrimination Act.
- What country are you from? You cannot ask if a candidate is an immigrant or inquire about their national origin. However, you can ask if they are legally able to work in the U.S.
- What is your ethnicity? Candidates are protected from revealing their race or ethnicity. You cannot ask a person this on an application or during an interview, or it will surely lead to a lawsuit.
- What religion do you practice? You also cannot ask a person what religion they practice. This information can be used to discriminate against a candidate. Your application should simply ask applicants what days they are able to work.
Get Legal Help
As you can see, it can be very easy to violate the laws when it comes to application questions and interviewing job candidates. To ensure your company is conducting fair interviews and is complying with the laws, you need to consult a business attorney. An attorney can review your list of interview questions and hiring practices and let you know if they see any red flags.
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If you have questions about what questions you can legally ask during a job interview, let our business attorneys help.
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