Effective recruitment is a major factor in an organization's success, and stakeholders constantly try to find new ways to improve their selection practices. This usually involves asking the right questions and analyzing the answers to determine whether a candidate is a potentially good fit, both as a professional and as a person.
Some topics, however, are off-limits. The U.S. Equal Employment Opportunity Commission (EEOC) recognizes discriminatory questions, and knowing what topics fall under those categories can help you avoid challenging situations. Here are the respective topics and examples of illegal interview questions.
The candidate's age
Under the Age Discrimination in Employment Act (ADEA), you can't discriminate against workers over the age of 40. Some states also protect very young employees from age discrimination. You can't ask a candidate, either directly or indirectly, about their age, including questions such as:
- What year did you graduate high school?
- What year were you born?
- How long have you been in the workforce?
You can avoid being discriminatory by simply asking the candidate to confirm they can handle the job's schedule and workload. Also, in situations where age is a legal requirement, such as serving alcohol, you can ask a candidate for proof of their age.
The Americans with Disabilities Act of 1990 (ADA) forbids employers from discriminating against candidates with existing, past, or potential disabilities. You also can't ask them about their medical status or to take a medical exam before giving them the job. Questions you should avoid include:
- Do you currently have any disabilities?
- Have you ever had mental health issues?
- Do you have any diseases or ailments?
- Have you ever undergone rehabilitation?
Just like with the age issue, you can avoid asking these questions while still getting a good idea whether a candidate can perform the job by indirectly asking them about their abilities. You can, for example, describe the role's physical and psychological requirements and ask them to demonstrate their ability to perform those requirements. You can also ask if they need special accommodations to perform the role. You just have to phrase your question in a way that doesn't force the applicant to reveal their disability status.
"You can avoid asking these questions and still get a good idea whether the candidate can perform the job by indirectly asking them about their abilities."
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against job candidates based on their genetic heritage. You also can't request or purchase genetic information about your employees. Questions you can't ask include:
- Do you have a history of mental diseases in your family?
- Has anyone in your family ever been diagnosed with heart disease or breast cancer?
Under the Title VII of the Civil Rights Act of 1964, it's illegal to hire or terminate employees based on their nationality. In addition to their place of birth, asking about candidates' accent, look, and other elements of their ethnic background are off-limits. The candidates' citizenship and immigration status are also subjects you can't inquire about, according to the Immigration Reform and Control Act of 1986 (IRCA). Interview questions you should avoid include:
- Where were you born?
- Where does that accent come from?
- Where did you grow up?
- What is your first language?
You can, however, ask candidates if they are authorized to work legally in the United States.
Race and color
Title VII of the Civil Rights Act of 1964 also makes it illegal to treat job candidates differently based on their race or personal traits associated with it. This means you should avoid questions that might have anything to do with the candidate's race. A valid exception might be asking about a candidate's race for affirmative-action-related purposes, but you must be fully transparent in showing the respective information was not a factor in the hiring decision.
Sex, gender, marital status, and/or sexual orientation
The Civil Rights Act of 1964 also prohibits treating applicants differently based on their sex, gender, or sexual orientation. You also can't ask questions regarding pregnancy, childbirth, or any condition associated with them. Questions you should avoid when interviewing candidates include:
- Are you currently pregnant? Do you plan on becoming pregnant in the near future?
- Are you married?
- Do you currently have any children?
- Are you sure you have the time to balance work duties and raising your child?
Just like with other potentially discriminatory subjects, you can ask about the one thing that should be your top priority when hiring new people: Can this person do a good job? You can ask them if any restrictions might prevent them from performing their professional duties or if any commitments might interfere with their work schedule.
Title VII of the Civil Rights Act of 1964 was truly groundbreaking in eliminating discriminatory practices. Besides prohibiting any discrimination based on race, ethnicity, gender, and sexual orientation, it also makes it illegal to discriminate based on the candidate's religion. This law not only applies to traditional religions but also to sincerely held beliefs the candidate might have. Related questions you should avoid include:
- Where is your place of worship?
- Do you require special time off for religious holidays?
You're exempt from this rule if your organization and its culture are specifically and openly religious, and you're looking for candidates with similar beliefs.
By remembering these discriminatory topics, you can improve your recruitment practices and ensure irrelevant applicant characteristics or your own biases don't get in the way of finding the right hire.
More tips for improving recruitment practices:
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