Are your Interview Questions Even Legal?

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Knowing what not to ask can be just as important as knowing what to ask when conducting an interview with a job candidate. While some questions are inappropriate, others, even those that are seemingly harmless, are illegal.

Federal law works to ensure that candidates are hired based on their qualifications and not by any prejudicial criteria.

Questions that might intentionally or unintentionally obtain information about race, gender, religion, national origin, marital status, age, physical and/or mental status, ethnic background, sexual preference, or any other discriminatory information are generally illegal.

Questions asked during an interview should focus only on job qualification. Legal interview questions include:

  • What education do you have?
  • What experience qualifies you for this job?
  • Do you have licenses and certifications for this job?
  • Are you willing to travel?
  • What name(s) are your work records under?
  • Do you have the legal right to work in the United States?
  • Are you available for overtime?

Following the interview, the employer is legally permitted to request the following information:

  • A copy of your birth certificate
  • Affirmative action statistics
  • Your marital status (married or single only)
  • Proof of citizenship
  • Photographs
  • Physical examination and drug testing
  • Social Security card

Avoid asking job candidates about anything which is not a factor in the ability to perform a specific job duty, such as the following:

  • Birth date (this is routinely requested on an application, for background check verification, but don’t ask in person.)
  • Maiden name, marital status, dependent status, or children
  • Birthplace, or the birthplace of their parents, spouse or other close relatives
  • Asking about citizenship or national origin
  • Religious denomination, affiliations, or holidays observed. For example, if working Saturdays is required, you may clearly state that Saturday work is a requirement for this job, but you can’t ask the candidate if they observe the Sabbath. The same goes for asking which church or temple they attend.
  • Volunteer activities (unless the job requires direct community involvement)
  • Any comments or questions related to complexion or skin color
  • Unless you are hiring a model, don’t require a photo prior to hire
  • Questions related to height, weight or age
  • The spouse’s employment
  • The spouse’s name (providing this information to an interviewer may reveal sexual preference, ethnic background, national origin or similar information)
  • Avoid clarifying Mr., Miss or Mrs. or any inquiry regarding gender
  • Avoid inquiries regarding an individual’s physical or mental condition which are not directly related to the requirements of a specific job, and which are used as a factor in making employment decisions in a way which is contrary to the provisions or purposes of the Civil Rights Act
  • Don’t ask about arrests, felonies, or misdemeanors that did not result in conviction

In addition, the American Disabilities Act includes the following prohibited interview questions:

  • Have you ever been hospitalized? If so, for what condition?
  • Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
  • Is there any health-related reason that you may not be able to perform the job for which you are applying?
  • How many days were you absent from work because of illness last year?
  • Are you taking any prescribed drugs?
  • Have you ever been treated for drug addiction or alcoholism?

For more information on what information is legal to obtain when interviewing or hiring a new employee, see our article on background checks.

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