Illegal Interview Questions (that you don’t mean to ask)

September 20, 2010

When interviewing a candidate for your expansion stage company, you may ask some questions out of sheer curiosity which are actually illegal interview questions. How can you protect yourself from legal trouble while providing recruiting support? One way to ensure the best practices process is to know what you can ask, and what you can’t.

You may already be aware that considering a candidate’s gender, race, ethnicity and/or national origin, marital or maternity status, religion, sexual orientation, veteran status, or disability when considering them for a job is illegal, but you may not be aware that certain questions you ask may be an indication of those things, and are therefore illegal as well. An article on VentureBeat brought this to my attention again today, and I thought it would be an interesting topic for management teams to further explore.

Here are five questions you should never ask in an interview…

  1. I love your accent… where is it from? Even if you can already tell where the accent is from, don’t ask. This question can be interpreted as asking where the candidate is from, and discrimination based on national origin is illegal. If you are asking because you are curious as to the applicant’s citizenship, it is legal to ask: Are you authorized to work in the US?
  2. 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, and should therefore be avoided. If you have any concerns about a candidate’s physical ability to complete the work required for the job, that should be part of the job description and may be confirmed in an interview. If your concern lays in the candidate’s reliability, that can be discussed with a previous manager in a reference check.
  3. Do you have any kids?  This may seem like small talk, but asking about familial status, including a candidate’s husband/wife, children, and/or aging parents who may be cared for at home, is off limits. Even if a candidate brings up the subject themselves, steer clear. If the reason you’re asking is to determine if the candidate will be able to work regular work hours (or overtime), ask instead: Are you able to work a regular work schedule?
  4. My brother went to State U, too…. what year did you graduate? Even if the candidate appears as though they are a couple years out of school, you should not ask this question, or ask any questions that cannot be answered without a candidate having to give away their age. If you are curious about the amount of experience a candidate has in a position related to the one at hand, you may ask about that, but not a question which would force the candidate to identify how old they are.
  5. I noticed your necklace… do you attend Church locally?  You may ask just because you are socially interested in whether a candidate attends a local church, synagogue or mosque, or perhaps you are curious for scheduling purposes due to upcoming religious holidays, but asking about religious affiliation is 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?

Other topics you should not discuss during an interview include a candidate’s status as a veteran of the armed services, whether they smoke or drink (while not working, of course!), or whether they have any illnesses.

To avoid a potential lawsuit, here are some interview suggestions:

  • Stick to a pre-written list of questions and let the candidate speak freely.
  • 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 they are interviewing for. Simply put: If your question isn’t imperative to the job at hand, don’t ask it.
  • If you are interested in the candidate, contact their references, as well as any references suggested by those references. This is not a chance to ask what are still illegal interview questions, but should give you the opportunity to touch upon any area of concern you have about a candidate’s aptitude for the job.

VP, Human Capital

<strong>Diana Martz</strong> is Vice President, Human Capital at<a href="http://www.ta.com/">TA Associates</a>. She was previously the Director of Talent at OpenView.