10 Illegal Interview Questions You Should Know About

Overview

• Top 10 illegal interview questions to avoid in 2022

• Three ways job candidates can respond to an illegal and sensitive question

• How to better structure the sensitive questions and get an answer from the job candidate without breaking the law

The core role of the human resource (HR) team is continuously engaging with talent to accelerate hiring decisions and stay competitive in the labor market. During the hiring process, interviewing is the most critical aspect. For the recruiter, it presents an opportunity to evaluate the candidate objectively. While for the candidate, it is an opportunity to prove their suitability for the role. Failure on either side can topple the success in the initial stages and halt the hiring process.

While the hiring manager has little or no control over how a candidate performs, they can prevent failure on their side by asking the right mix of job-related and cultural fit questions. However, some jobs will ask the recruiter to ask personal and sensitive questions that may be considered illegal. Questions on age, race, sexual orientation, marital status, etc., may violate local, state, or federal law in line with the US Equal Employment Opportunity Commission (EEOC).

How then can a recruiter navigate interviews and onboarding without crossing these lines? Our guide will detail the top 10 illegal job interview questions, how to restructure them, and three ways employees can choose to respond.

To properly evaluate a job candidate’s potential, recruiters may unknowingly ask inappropriate questions. Below are the top 10 illegal interview questions recruiters need to avoid and how to better structure the questions to be effective without crossing any lines.

You have no business probing a job candidate’s age as a recruiter. Most people will consider it embarrassing and potentially offensive. In addition, it can be viewed as an attempt at job discrimination based on age which will violate the Age Discrimination in Employment Act (ADA).

Nevertheless, there may be instances where knowing a job applicant’s age is integral to the hiring process. For example, if you are hiring for a bartender position, the applicant must prove that they are above 21 years of age. In this situation, instead of outrightly asking, “How old are you?” Try:

• “Are you aware this job offer requires that you be at least 21 years of age?”

• “Can you please confirm that you are 21 years or older?”

• “Do you have the requisite documents to prove that you are above 21 years in line with this job requirement?”

Asking or making a job candidate talk about their disabilities can elicit various emotions — from complete emotional breakdown to defensiveness. In addition, you might be violating the Americans with Disabilities Act and, therefore, liable for prosecution. Disability is a touchy and sensitive topic that you must handle with caution.

The idea is not for you to avoid the question when the need arises but to ask in a way that won’t further embarrass the individual involved or break the law. For instance, you can approach it in one of these ways:

• “Can you perform all the functions required of the role?”

• “Will you need any assistance at any point?”

The Immigration Reform and Control Act of 1986 (IRCA) stipulates that employers cannot use immigration and citizenship against a job candidate. You’re mandated to file an Employment Eligibility Verification (I-9) Form for your employee payroll and submit identity documents that show employment authorization.

However, that’s only when the job offer has reached the stage where the candidate needs to fill out such a form — mostly after the interview stage. Therefore, instead of asking potential employees illegal questions like:

• “Are you a U.S. citizen?”

• “What is your national origin?”

• “Are your parents natural U.S. citizens or immigrants?”

Try a more legal approach like:

• “Are you eligible to work in the U.S.?”

• “Do you have the work authorization to work in the United States?”

Questions on gender and sexual orientation are controversial and discriminatory. You may get prosecuted as it also violates Title VII of the Civil Rights Act. Therefore, avoid asking questions like:

• “Are you sure you can handle this role as a woman?”

• “This job requires lots of soft skills. Would you say you have those as a man?”

• “What is your preferred gender identity?”

We get it — there’s always that temptation to ask an applicant’s marital status or family status to ascertain its long-term impact on the job. However, it’s best avoided by all means. Additionally, you might be taking a huge legal gamble if you form the habit of asking job candidates if they’re pregnant.

Although technically it’s not against the law, you may unknowingly infringe aspects of the Pregnancy Discrimination Act. Even if you don’t, the signal you’ll be sending with such a question just isn’t worth it. So, avoid any questions regarding marriage and pregnancy. Don’t ask:

• “Are you single, married, or in a relationship?”

• “Do you want to be addressed as Mr., Mrs., Miss., or Ms.?”

• “How many children do you plan on having?”

• “Are you hoping to start a family?”

• “Do you plan on having more kids?”

Religion is one hyper-sensitive topic you should avoid. We understand you’re just asking for scheduling purposes — to ascertain if your potential employee is unavailable on weekends or religious holidays. However, we recommend avoiding these questions as they may appear discriminatory and illegal. Avoid asking:

• “What is your religious affiliation?”

• “Do you believe in God?”

• “Are you an atheist?”

• “Are you religious by nature?”

Instead, you could ask something like:

• “What is your schedule availability?”

• “Do you have anything that would inhibit you from being available during those times?”

Race or ethnicity is another hyper-sensitive issue that you must avoid. The reason is that most issues about race border on discrimination, and people are generally wired to view it from that perspective. So don’t ever mention race or ethnicity in an interview, except when essential. For instance, it may be acceptable to make an ethnic background check when hiring a language translator. But still, avoid asking:

• “What’s your ethnicity?”

• “Are you a full-blooded [state ethnicity]?”

• “Are you well connected to your roots?”

Instead, ask:

• “Are you aware this role will require that you speak [state language]?”

• “We are looking for a fluent speaker for this position. Are you fluent in [state language]?”

Although no federal law prohibits asking potential employees for their criminal records, federal EEO law prohibits discrimination based on such records. If the role is a sensitive one, you can always try asking:

• “Have you ever been convicted of [the crime named should be such that it may impact the job performance]?”

Rather than;

• “Have you ever been arrested?”

• “Have you ever been charged with any criminal offense?”

Asking job applicants about their salary history for any purpose whatsoever during an interview is illegal in most states. Therefore, except brought up by the employee after hiring, avoid it or any related questions like:

• “How much were you paid at your last job?”

• “Did you earn minimum wage?”

You could instead ask:

• “What is your salary expectation for this position?”

Other than personal data, used for reference checking, you should avoid asking for any additional personal information that isn’t relevant to the role. These include height, weight, philosophical beliefs, political opinion or associations, health or medical conditions, and more. Focus on job-relevant questions like:

• “Can you share your previous work experience?”

• “What made you want to take up this role?”

• “What are your strengths and weaknesses?”

As a job candidate, if you are confronted with illegal questions, you can try any of the following options.

You can choose to answer any illegal questions posed by a recruiter, especially if you feel comfortable. Sometimes, employers or recruiters may ask any of these questions naively and without any negative intent. They could just be trying to be friendly and informal. By all means, you can answer an illegal question if you do not feel disturbed by it.

You can choose to also sidestep an illegal question. For instance, a recruiter may ask you if you have any children or if you are having any marital issues. Suppose you feel bothered by the integrity of the question. In that case, you could respond by assuring them that your marital or domestic situation at home will not impede your ability to perform in the said role.

You can challenge or question the relevance of a particular line of inquiry to the job description. This will make the interviewer aware of their inappropriate actions. Subsequently, suppose the interviewer refuses to refrain from asking such illegal, discriminatory questions. In that case, you can ask them to end the interview if you feel uncomfortable.

To the job applicant, the interview stage is the most challenging as they have to prove their capabilities by navigating complex and (sometimes) illegal questions. However, most people in the labor market don’t know where to apply and land their favorite job, let alone get an interview invite.

That’s where Joblist comes in. You only need a few seconds to take our job quiz for our system to match you to your dream job. In addition, our team is ever ready to offer you career advice that works. We believe that your job search or career advancement should be hassle-free!

• Age Discrimination | US Department of Labor

• Americans with Disabilities Act | US Department of Labor

• Immigration Reform and Control Act of 1986 (IRCA) Legalization Provisions - Content Details - CFR-2012-title8-vol1-part245a-subpartA

• Religious Discrimination | US Equal Employment Opportunity Commission

• Title VII of the Civil Rights Act of 1964 | US Equal Employment Opportunity Commission

• Pregnancy Discrimination | US Equal Employment Opportunity Commission

• Pre-Employment Inquiries and Financial Information | US Equal Employment Opportunity Commission

• A Running List of States and Localities that Have Outlawed Pay History Questions | HR Dive

• I-9, Employment Eligibility Verification