lawful and unlawful interview questions

Unlawful Inquiries: Any question that directly or indirectly relates to a religion. Lawful Inquiries: None except “Can you work on Saturdays or Sundays?” and then only if this is a requirement of the job.

In today’s competitive environment, the quality of your team is paramount to your success. In your enthusiasm to find the right person, you may not think about what you should and should not ask. The Equal Employment Opportunity Act (EEOA) prohibits you from asking questions that might lead to discrimination or the appearance of discrimination.

This sounds easy, but can be hard, especially if you develop an easy rapport with the candidate during the interview. It is natural when getting to know someone to ask about family, friends, education or other off-limits topics, but that can get you into trouble during an interview. [Interested in background check services? Check out our best picks.]

“It’s important to ask the same questions to every candidate you are interviewing for a particular position,” said Shobi Nunemacher, president of Referral Staffing Solutions. “You may have a different set of questions for different positions but when you are comparing two or more candidates for one opening, keep your questions the same.” Looking to outsource your hiring process? Working with a staffing agency can streamline the hiring process.

Legal & Illegal Interview Questions

CONVICTIONS (OTHER THAN FOR TRAFFIC VIOLATIONS)

To the extent that this question implies an absolute bar to the employment of an applicant who has a conviction record, it is probably unlawful. See Carter v. Gallagher, 451 F. 2nd 315 (8th Cir. 1971). This is because some minority groups in our society have conviction records substantially in excess of the average, taking into consideration their relative numbers and the extent of their “criminal” activity. On the other hand, an employer probably has the right to exclude persons who have been convicted of certain offenses from consideration for certain kinds of jobs, at least if this is done on a carefully considered basis. To avoid frightening off qualified applicants who have irrelevant criminal records, the best practice would be to obtain conviction information through local police departments rather than from applicants. If this is not possible, the application may indicate that the existence of a criminal record does not constitute an automatic bar to employment. In addition, each person who will evaluate information concerning criminal records should be given careful instructions as to its limited usefulness.

Because minority persons are far poorer on the average than whites, consideration of these factors has an adverse effect on minorities and is probably unlawful unless required by considerations of business necessity. See EEOC Decision 72-9427 (1971), CCH Employment Practices Guide par. 6312. The U.S. Department of Labor has also recognized credit records.

This question may reflect preference for friends or relatives of present employees. Such a preference would be unlawful if it has the effect of reducing employment opportunities for women or minorities. It would have this unlawful effect if the present work force differs significantly in its proportion of women or minorities from the population area which workers are recruited. This question may also reflect a rule that only one partner in a marriage can work for the employer. There is a growing recognition that such a rule hurts women far more often than men and that the rule serves no necessary business purpose.

Section 504 of the Rehabilitation Act of 1973, as amended, prohibits discrimination in employment on the basis of handicap except that a handicapped person must be “qualified”–viz., a qualified handicapped person in the employment context is “a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question.” The employer need not hire any individual who, after reasonable accomodation, is not able to perform the essential functions of a job effectively and safely. On July 26, 1990, President Bush signed the Americans with Disabilities Act (ADA) into law. The ADA prohibits discrimination against individuals with disabilities. All employers with 25 or more employees were covered as of July 26, 1992. The ADA prohibits covered employers from discriminating against qualified disabled individuals in any aspect of employment, including hiring, promotion, dismissal, compensation, training, or any other term, condition or privilege of employment. Specific prohibitions include limiting, segrregating, or classifying job applicants or employees in ways that adversely affect the opportunities or status of such individuals because of disability; using standards or criteria that have the effect of discriminating against the disabled; denying job benefits or opportunities to someone because of association or relationship with a disabled individual; not making reasonable accomodations; using employment tests or selection criteria that screen out the disabled and are not job-related; and failing to use tests that accurately measure job abilities rather than the impairment of a disabled individual.

Some employers have imposed minimum height and weight requirements for employees which are not related to the job to be performed and which have the effect of excluding above-average percentages of women and members of certain nationality groups. Unless height or weight is directly related to job requirement, these questions should not be asked.

Women generally have been relegated to poorer paying jobs than men, and have been paid less than men for the same work. As a result of this discrimination, a woman might be willing to work for less pay than a man would find acceptable. It is unlawful, however, to pay a woman less than a man because of community wage patterns which are based on discrimination. See Hodgson v. City Stores, Inc., 332 F. Supp. 942 (M.D. Ala., 1971).

This is not relevant to a persons ability to perform a job and could be used for discriminatory purposes. For example, a womans maiden name may be used as an indication of her religion or national origin. This item also constitutes an inquiry into marital status which is discussed separately.

Some employers have refused to hire a married woman for certain jobs. Most airlines, for example, refused for many years to permit a married woman to be a flight attendant, though other employees could be married. This practice was held to violate Title VII of the Civil Rights Act of 1964 in Sprogis v. United Airlines, 444 F. 2nd 1194 (7th Cir. 1971), and par. 1604.4 (a) of the Comissions Guidelines on Discrimination Because of Sex. Finally, an employer could not refuse to hire a married worman for any job or for particular jobs because of the employers beliefs concerning morality or family responsibility.

Illegal Interview Questions and Topics

Ready for the short list of illegal interview questions?

We’ve got all the no-no topics here, including race, age, disability, and religion.

Want more detail? The next section shows specific questions not to ask in an interview.

Employers should tread with caution when designing employment application forms. It is best to have company legal counsel review the form before distribution. As with interview questions, certain questions, such as those related to religion, arrest record and year of graduation from high school or college, should be avoided on application forms. Questions pertaining to race and asking for Social Security numbers are discussed below.

Despite specific information employers would like to have, they must avoid asking discriminatory questions in interviews or on application forms and resist basing an applicants evaluation on criteria that are discriminatory in nature. Many discrimination complaints and lawsuits stem from interviews and application forms. Given that the cost for an employer to defend itself against a claim of illegal employment discrimination can be several hundred thousand dollars, an employer must be sure it conducts lawful interviews and uses application forms that have been thoroughly reviewed to exclude requests for prohibited information.

1U.S. Equal Employment Opportunity Commission. (n.d.). Title VII of the Civil Rights Act of 1964. Retrieved from http://www.eeoc.gov/laws/statutes/titlevii.cfm

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

The EEOC offers the following guidance to employers that wish to avoid racial discrimination in hiring and promotions. “Race or color should not be a factor or consideration in making employment decisions except in appropriate circumstances as set forth at Section 15-VI-C of the Compliance Manual section on Race and Color Discrimination. Reasons for selection decisions should be well supported and based on a persons qualifications for the position.” Accordingly, inquiries that reveal information bearing no relationship to the qualifications for the job sought (e.g., year of graduation from high school, child care arrangements, country of origin) have been viewed as evidence of an employers discriminatory intent.

Illegal Interview Questions

It is illegal to ask a candidate questions about their:

  • Age or genetic information
  • Birthplace, country of origin or citizenship
  • Disability
  • Gender, sex or sexual orientation
  • Marital status, family, or pregnancy
  • Race, color, or ethnicity
  • Religion
  • There are exceptions. Sometimes the US government requires employers to ask about race, age, and other details. That can be for census data or affirmative action programs.

    FAQ

    What are unlawful interview questions?

    It is illegal to ask a candidate questions about their:
    • Age or genetic information.
    • Birthplace, country of origin or citizenship.
    • Disability.
    • Gender, sex or sexual orientation.
    • Marital status, family, or pregnancy.
    • Race, color, or ethnicity.
    • Religion.

    How do you answer unlawful interview questions?

    Use a neutral and professional tone. By pointing it out, you are putting the employer on alert that you’re aware the question is off-limits. If they continue to ask the illegal question, you do have the right not to answer the question. And, you can always walk away from the interview.

    What you can ask and what you can’t Legal Illegal interview questions?

    An illegal question is one where the applicant is being asked to share information that has no bearing on the position they have applied for. As a student and job seeker, it is easy to forget you have options…. BUT YOU DO!

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