Illegal Job Interview Questions: What You Can and Can’t Ask Candidates

Illegal Job Interview Questions: What You Can and Can’t Ask Candidates

February 04, 2021

The economy is starting to recover and that means businesses are beginning to hire again. Excellent news! But you’re probably aware that there are certain questions that are illegal for an employer to ask during a job interview. you may be wondering, as an employer or job candidate, what questions are proper to ask in a job interview? And which ones aren’t? The questions you ask during an interview matter. Of course, this can be tricky as interviewers juggle the task of ensuring they do not ask any questions that solicit information from a candidate that could be used to discriminate against them. 

Questions related to a candidate’s age, medical information, height, weight, race/ethnicity/color, gender/sex, citizenship, religion, disability, medical status, marital/family status, or pregnancy could open your business up to a discrimination lawsuit. Some lawsuits have cost businesses millions of dollars. We’ve outlined some guidance on legal vs. illegal job interview questions, including additional considerations for COVID-19.

The EEOC’s Role

The U.S. Equal Employment Opportunity Commission enforces workplace anti-discrimination laws, including:

Because of the laws laid out in these statutes and others, interviewers must take care not to ask questions or lead a conversation toward information that may be considered discriminatory. Doing so could open the door to an investigation by the EEOC, and potentially a lawsuit.

It’s always best to structure interview questions so that they help you determine if a candidate has the behaviors, skills, and experiences necessary for the job. Some infor­mation may be disclosed after hiring only, like proof of citizenship, marital status, number of dependents for tax purposes, and proof of birthdate.

Legal vs. Illegal

So that you don’t have to learn the hard way, below find a chart with the most common areas where interview questions can become improper and examples of illegal questions.

  Legal Illegal 
Age Usually asking a candidate’s age is not permitted, except when age is a requirement (i.e. working in a bar). In this case, employers may ask for their age and for proof. How old are you? What year were you born? What year did you graduate high school?
Citizenship/National Origin Are you legally eligible to work in the U.S.? Can you provide proof of citizenship/visa/etc. if we hire you?  Are you a U.S. citizen? Where were you born? What country is your family from?
Disabilities Employers should accurately describe the job and its responsibilities and then ask if the candidate can perform all of its functions.  Have you ever been injured while working? Have you ever filed a workers’-compensation claim?
Marital/Family Status Do you have any commitments that might prevent you from completing the responsibilities or shifts of this job? Are you married? Single? Do you have children?
Pregnancy How long do you plan on staying with us? Do you have any leave planned? Are you currently pregnant? Are you currently trying to have children?
Financial Status Asking if a candidate owns a car is only permissible if owning a car is a requirement of the position. Do you own a home? Do you rent? Do you own a car?
Genetic Information It is not permissible to ask any candidate about their genetic information or history. Do you or any members of your family have a history of disease?
Height/weight These questions may only be asked if you can prove that a candidate’s height and weight are relevant to the job. If not, accurately describe the job and its responsibilities and then ask if the candidate is able to perform all of its functions. How tall are you? How much do you weigh?
Personal Information Have you ever worked for us before under another name? What are the names of your references? Have you ever changed your name through a marriage application? What is your maiden name?
Race or color No question about this topic is permissible unless you can prove it is an occupational requirement.  All questions about race or color.
Religion/Creed No question about this topic is permissible. What denomination are you? Who is your pastor/spiritual leader?
Sex/Orientation/Gender Identity No question about this topic is permissible. What gender do you identify as?

Sometimes a job candidate will voluntarily offer up such personal information without you asking. If this is the case, do not follow up on their comment and do not make it a part of your decision-making process. 

Additional COVID-19 Considerations

The CDC has determined that an employee who is infected with COVID-19 poses a threat to a workplace and its occupants. So some conditions of employment are contingent on this fact. Here are three items to consider:

  1. If an employer needs a job applicant to start immediately and the individual has COVID-19 or symptoms of it, the employer may withdraw the job offer because the employee is not fit to enter the workplace. 
  2. An employer may not withdraw or postpone a job offer if an individual is pregnant or 65 years or older (conditions which the CDC has identified as placing individuals at a higher risk for contracting COVID) as being at higher risk does not justify such action. However, an employer may consider offering a telework option to the individual in question or discuss postponing the start date with the individual.
  3. An employer may not hold a job offer contingent upon an COVID-19 antibody test. The ADA considers an antibody test a medical examination, which is not allowed unless the medical exam is “job-related and consistent with business necessity.” Since the CDC stated that antibody tests should not be used to make decisions about employees returning to the workplace, and an employer may not administer or require an employee or job candidate to obtain an antibody test as a condition of returning to work. 

You can also check out the EEOC’s guidance on this and other related topics.

Interviewers should beware of the consequences of asking illegal interview questions and how to best structure questions to obtain only the information necessary to ascertain if an employee has the experiences, skills, and behaviors necessary to perform a job. Be especially conscious of it in a more casual interview setting, like taking a candidate out for lunch or dinner. Employers should also beware of the nuances that COVID-19 has added to the hiring process. 

If you have any questions about the legality of interview questions as an interviewer or interviewee, give us a call today!