4 min read
When trying to get to know a person during an interview, you may naturally want to ask them how long they’ve been working. But, did you know that this question – and many other seemingly appropriate ones – are actually illegal for employers to ask?
Asking how long an employee has been working is a big HR no-no because it could inform an employer of an applicant’s age and unfairly affect an employer’s hiring decision. In the US, discriminating against job applicants based on age, race, color, religion, gender, sexual orientation, pregnancy, national origin, or disability is illegal. All hiring managers are responsible for keeping up with what they can and cannot ask.
Here are 7 seemingly appropriate illegal interview questions you’ll want to steer clear of:
- Have you ever been arrested?
Plainly asking an interviewee if they’ve ever been arrested is illegal. You can, however, ask a candidate if they’ve ever convicted a crime or if you want to be more specific if they’ve ever convicted a crime other than a traffic violation. That said, depending on the state you’re in, a conviction record can’t be used to disqualify a candidate from employment unless it’s directly related to the job. For example, a record of statutory rape will probably prohibit one from getting a teaching job.
- How old are you?
Denying someone a job based on their age is against the law, therefore you cannot directly ask someone how old they are. In the case that a job has a minimum age requirement, you are allowed to ask someone if they’re at least a certain age. For example, a hiring manager may ask an applicant interviewing for a bartending position if they are at least 21 years old.
Similar illegal questions to avoid: When were you born? How long have you been working?
- Do you have children?
Many employers have their own kids and may find themselves interested in asking interviewees about their own. It’s natural. However, no matter the intention of the question, you’ll want to steer clear of all family and child-related questions. This is to protect parents from discrimination. In the US, it is illegal to deny someone a job simply because they have children. Similarly, denying someone a job because they are pregnant is also against the law. Some employers may argue that applicants with children might not be able to perform certain jobs. If this is the case, questions specifically regarding job duties are allowed as long as no questions directly ask about children. Here’s an example of an appropriate question you can ask: “This job requires five days of travel each month. Do you have any restrictions that would prevent you from doing that?”
Similar illegal questions to avoid: Do you plan on having children? Are you married? “What kind of childcare arrangements do you have in place?”
- Where are you from?
It is against the law to ask a job applicant any questions regarding their nationality. This includes “where are you from” and “what country were you born in?” Questions like these also provide a hiring manager with information on the applicant’s race or religion, which you’ll want to avoid. It is also illegal to ask an interviewee if English is their first language. If necessary, for job functions, you can ask “how would you rate your communication skills” or “which languages do you speak fluently?” Asking a candidate if they are authorized to work in the US is a completely legal question.
Similar illegal questions to avoid: Are you a US citizen? What is your accent? What is your native language? Where does your spouse work?
- Do you have any disabilities we need to know about?
No matter what the job, you cannot directly ask an interviewee if they have any disabilities, medical conditions, or mental illnesses in the interview process. Instead, you can describe your job duties and ask if the candidate believes they are capable of performing them with or without reasonable accommodation. Once an offer has been made, employers can ask disability-related questions or require certain medical exams that are relevant to job duties.
Similar illegal questions to avoid: Have you ever filed a workers’ compensation claim? Have you ever suffered a workplace injury?
- Were you dishonorably discharged from the military?
This question isn’t actually illegal (we cheated!) However, we included it because asking it could subject you to state military discharge anti-discrimination laws or possible disparate impact claims regarding race. According to the EEOC, discharge status has been found to adversely affect African-Americans and violates Title VII. To avoid accidental discrimination, it’s best to avoid this subject as a whole. Another military subject to avoid is future deployment possibilities. You can’t ask an employee if they expect a future deployment, because using that information as a reason not to hire them is discriminatory and unlawful. If you do hope to gain some information about one’s military experience, all questions regarding past dates of service, training and education received, duties performed, rank during service, and pay during service are completely fine to ask.
Similar illegal questions to avoid: Why were you discharged from the military? Do you expect future deployment? Were you in a foreign military service?
- Will your religion affect your work availability?
All questions regarding a job applicant’s religious affiliations or practices are almost always legally banned under federal law. We say “almost always” because religious organizations are actually exempt from these laws and can in fact factor in an applicant’s religion in their hiring decision. All non-religious organizations, however, must follow the EEOC’s laws and avoid all questions about one’s religion including scheduling questions like “what days do you worship?” and “will your religion conflict the days you can work?”
Similar illegal questions to avoid: Will you need time off for religious holidays? Are you religious? What is your religion?
In general, it’s best practice to avoid all questions regarding sex, race, religion, age, national origin, and disabilities during any interview. Doing so should prevent you from walking any fine lines. If you stick to questions regarding the job itself, you should avoid all legal issues and get the important information that you need from an applicant. Following your written job description during an interview is a great way to keep an interview on track.
More information on federal laws regarding prohibited employment policies/practices can be found on the U.S. Equal Employment Opportunities Commission website.
Trouble keeping up with HR regulations? Consider DP Boost, our killer HR support service.
For more information on other great hiring practices, check out our Hiring and Firing Guide!
Legal Disclaimer: This document is intended for informational purposes only and does not constitute legal information or advice. This information and all Dominion Payroll materials are provided in consultation with federal and state statutes and do not encompass other regulations that may exist, such as local ordinances. Transmission of documents or information through Dominion Payroll does not create an attorney-client relationship. If you are seeking legal advice, you are encouraged to consult an attorney.