Avoid Asking These Illegal Interview Questions

September 3, 2018 Matthew Tarpey

 

With the number of laws – both federal and state – covering many different kinds of discrimination, it can be hard to be sure what interview questions are permissible and what questions are not. To help you avoid accidentally crossing the line, here are each of the different types of discrimination recognized by the U.S. Equal Employment Opportunity Commission (EEOC), along with examples of what you can and cannot ask applicants about each topic.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. While the ADEA does not protect workers under the age of 40, some states have laws protecting younger workers from age discrimination.

Illegal Questions

  • What year were you born?
  • When did you graduate high school?

What You Can Ask

  • In cases where age is a legal requirement to do the work – such as serving alcohol or working at a casino – employers may ask candidates for proof of their age.

 

Disability Discrimination

Under the Americans with Disabilities Act of 1990 (ADA), it is illegal for employers to

treat qualified applicants with disabilities unfavorably because they have a disability; a history of a disability; or because they are believed to have a physical or mental impairment that is not transitory and minor, even if the applicant does not have such an impairment.

The law also prohibits employers from asking job applicants to answer medical questions or take a medical exam before extending a job offer.

Illegal Questions

  • Do you have a disability?
  • Have you ever filed for a workers’ compensation claim?
  • Have you ever been treated for mental health problems?
  • Do you have asthma or a heart condition, gout, etc.)?

What You Can Ask

  • Employers may ask whether applicants would need reasonable accommodations to perform certain tasks central to the open position, and what accommodations would be needed.
  • Employers are also allowed to describe the physical requirements of a job and ask applicants to describe or demonstrate how they would perform the job.
  • Be careful to phrase any questions in a way that answering would not force the applicant to reveal whether or not they have a disability.

Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.

 

Genetic Information

Under Title II of The Genetic Information Nondiscrimination Act of 2008 (GINA), it is illegal to discriminate against employees or applicants because of genetic information. It also prohibits the use of genetic information in making employment decisions and restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

Illegal Questions

  • Has anyone in your family ever been diagnosed with breast cancer?
  • Do you have a family history of heart disease?

 

National Origin

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to make employment decisions based on national origin. That means employers cannot treat applicants unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate based upon an applicant's citizenship or immigration status. This means employers cannot refuse to accept lawful documentation that establishes the employment eligibility of an employee, or demand additional documentation beyond what is legally required when verifying employment eligibility.

Illegal Questions

  • Where are your parents (or other family members) from?
  • What type of accent is that?
  • Where did you grow up?

Questions You Can Ask

  • Are you legally authorized to work in the United States?

 

Race/Color

Title VII of the Civil Rights Act of 1964 forbids treating applicants unfavorably because he or she is of a certain race or because of personal characteristics associated with race, such as hair texture, skin color or certain facial features.

Illegal Questions

  • Anything regarding the applicant’s race.

Some employers may need information about an applicant’s race for affirmative action purposes or to track applicant flow. In such cases, employers may legally ask for a candidate’s race on the job application, provided they have a legitimate use for the information and take steps to insure the information is not used in making hiring decisions. Any questions regarding the applicant’s race raised during the interview are likely to be viewed as evidence of discrimination.

 

Religious Discrimination

Title VII of the Civil Rights Act of 1964 also prohibits employers from treating an applicant unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional organized religions, but also individuals who have sincerely held religious, ethical or moral beliefs.

Illegal Questions

  • Where do you worship?
  • Will you need time off for any religious holidays?
  • Anything regarding the applicant’s religious beliefs.

The only exception is for religious corporations, associations or educational institutions whose purpose and character is primarily religious. These types of employers are allowed to primarily hire individuals of the employer’s religion.

 

Sex, Gender Identity, Sexual Orientation and/or Marital Status

Again, this type of discrimination, which involves treating applicants unfavorably because of their sex, gender identity or sexual orientation, is prohibited under Title VII of the Civil Rights Act of 1964.

 

In 1978, The Pregnancy Discrimination Act (PDA) amended the Civil Rights Act, forbidding employers from treating an applicant unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Illegal Questions

  • Are you pregnant? Do you have plans to become pregnant?
  • Are you married? What is your spouse’s name?
  • Do you have any children?
  • Who’s going to babysit?

What You Can Ask

  • Do you have any restrictions that might prevent you from traveling?
  • Do you have any commitments that will conflict with your work schedule?

 

Obviously, learning about candidates’ backgrounds is a tricky business – and that goes beyond just interview questions. That’s why CareerBuilder Employment Screening is committed to keeping you and your hiring process up to date with the latest federal and local regulations.

 

Find out more about CareerBuilder Employment Screening.

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