The next time you bring a candidate in for an interview, be careful what you ask them. You could be breaking the law.
Sure, your interview questions sometimes stem from sheer curiosity or may seem relevant, but there is such a thing as an illegal interview question. If you’re not sure whether you’ve been asking illegal questions without knowing it, check out this University at Albany table of both legal and illegal questions. The table even includes the government legislation that stands behind each question. Some of them may surprise you.
So how can you protect yourself from facing legal trouble when you conduct an interview? As part of your best practices process, I’d suggest developing a checklist of topics you can and cannot address.
For example, you may be aware that considering a candidate’s gender, race, ethnicity or national origin, marital or maternity status, religion, sexual orientation, veteran status, or disability during the search and hiring process is illegal. But you may not be aware that certain questions you ask can be an indication of those things. Therefore, any question that could directly encourage a candidate to speak about those aforementioned topics is also illegal.
An article on VentureBeat brings a few of those seemingly innocuous questions to light. Again, they may seem like simple conversation starters, but they could get you into serious legal hot water.
Here are five questions you should never ask in an interview:
I love your accent. Where is it from?
Even if you can already tell where a candidate’s accent is from, don’t ask. This can be interpreted as asking the candidate’s country of origin, and even if you don’t mean to discriminate by asking it, discrimination based on national origin is illegal. If you’re asking because you’re curious of the applicant’s citizenship, it is legal to ask: Are you authorized to work in the United States?
Did you miss many days of work last year?
Although excessive absence from work can be highly relevant, this question invites answers about physical disabilities or maternity leave. Based on those two possibilities alone, it should be avoided. If you have any concerns about a candidate’s physical ability to complete the job’s required work, it should be addressed in the job description and can be confirmed in an interview. If your concern is the candidate’s reliability, you should discuss that with one of the candidate’s previous managers during a reference check.
Do you have any kids?
Again, this is a seemingly harmless question that often instigates small talk. But asking about familial status — including a candidate’s husband or wife, children, or aging parents being cared for at home — is strictly off limits. Even if a candidate brings up the subject themselves, steer clear of follow-up questions. If the reason you’re asking is to determine if the candidate will be able to work regular hours (or overtime), ask this question instead: Are you able to work a regular work schedule?
My brother went to State U, too. What year did you graduate?
This question references age and as a result is illegal to ask. Even if the candidate appears to have graduated recently, you shouldn’t ask it. If you’re curious about the the candidate’s experience in a position relevant to the one you’re hiring, you may ask about that. But don’t ask any question that would lead the candidate to identify how old they are.
I noticed your necklace. Do you attend church locally?
This is usually a question that is well-intentioned. You may be socially interested whether a candidate attends a local church, synagogue, or mosque. Or maybe you’re curious how you might need to accommodate the candidate’s religious calendar. But asking any questions pertaining to religion are illegal. If your concern is whether a candidate will need to miss an important work function or event because of religious reasons, ask instead: Are you able to work with our required schedule?
Stick to a Set List of Questions
The easiest way to avoid talking about a topic that could get you in to hot water is to write questions before the interview and stick to that list. Once you ask a question, the candidate may speak freely and choose to reveal answers to illegal questions without your prompting, but if you initiate conversation about those topics, you may find yourself on thin ice.
Other topics you want to avoid during an interview include a candidate’s status as an armed services veteran, whether they smoke or drink, or whether they have any illnesses.
To avoid a potential lawsuit, here are some other interview suggestions:
- If you move off of your interview questions list, make sure you are asking directly about a candidate’s work experience or their capabilities related to the position. Simply put: If your question isn’t imperative to the job, don’t ask it.
- If you’re interested in the candidate, contact that person’s references and any subsequent references you get from those people. This is not a chance to ask illegal interview questions. Reference checks should give you the opportunity to discuss any areas of concern you have involving the candidate’s aptitude for the job.
No company wants the embarrassment or hassle of a lawsuit. There are legal and illegal ways to get almost all of the information you need from a candidate and you obviously want to avoid anything that could warrant litigation. HRWorld put together a great list of 30 illegal questions with 30 legal alternatives.
The bottom line is that every company and HR manager needs to have a set of interview questions that they strictly follow. If you don’t have these best practices in place, a seemingly harmless question could turn in to an HR nightmare.