The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws that protect job candidates and employees from discrimination. So, what are illegal questions to ask in an interview? You should avoid asking job interview questions about:
- Genetic information
- Race or ethnicity
- Gender identity or sexual orientation
- Citizenship status
- National origin
- Marital status
- Having children
- Family status
You can stay in the EEOC’s good graces by avoiding questions that can appear to be discriminatory.
Sometimes, though, you may need to cover some sensitive topics—like availability, legal convictions, private employment, physical health, and education — to decide if a candidate fits your job requirements. When you do, be careful about how you discuss them. Specifically ask candidates about their ability to carry out exact tasks and responsibilities that relate to the job.
Here are some good rules of thumb to avoid the appearance of discrimination when hiring:
- Stay away from anything that isn’t related directly to the job.
- Resist the temptation to delve into personal conversation.
- Don’t ask about anything you can learn from another source or in another way.
- Be direct about what traits and skills they’d need for the role and ask the candidate to speak to those things.
8 Illegal Interview Questions You DON’T Want to Ask
What are some questions interviewers cannot ask? While some illegal questions like “How old are you?” are more obvious, others are less so. Some questions masquerade as “cultural fit” questions, and others simply pop up when you let the interview meander off into small talk. A job candidate may file a complaint with the EEOC if questions like the one’s below are asked:
1. “What Part of Town Do You Live In?”
This seems like a harmless question — one that would be asked out of curiosity — but it could be interpreted as an attempt to figure out if a candidate lives in a part of town where mostly minorities live. It’s best to avoid it. If you want to know whether they live nearby because punctuality is important to you and traffic is heavy where you are, then ask candidates if there’s any reason they might not arrive to work on time each day.
2. “What Class Were You in at Rydell High?”
While you may ask a question like this simply because you found something in common with your candidate, it’s no longer innocent when you go in a direction that could help you figure out their age. The Age Discrimination in Employment Act (ADEA) prohibits any interview questions that could indicate age discrimination. However, you can ask them if they have a high school diploma and what university or college degree they have.
3. “Being a Start-Up, We Tend to Have Younger Managers. Would That Be a Problem?”
This is another indicator of potential age discrimination. While it may seem like a valid question about whether you and the candidate will work well together, by asking this question in this way, you imply that you’ve noticed the applicant’s age and see it as a potential reason not to hire them. A better way to ask this is by leaving out references to age altogether. You could say, “Would you be comfortable taking direction from someone who has less on-paper business experience than you do?”
4. “When Was The Last Time You Used Drugs?”
Businesses are not allowed to discriminate against recovering addicts or people who take prescription drugs for health conditions, so your questions must pertain to the current use of illegal drugs. Better yet, follow the rule of thumb not to ask something you can learn from another source. Strike this question from your interview list altogether and simply ask candidates whether they are comfortable taking a drug test prior to and during their employment.
5. “Have You Ever Had a Brush With the Law?”
Asking candidates for information about their arrest record is a no-go zone. The EEOC notes that statistically some minorities are arrested more often, so a question like this could lead to underlying racial discrimination. If you need to assess whether your accounting candidate is trustworthy, you can ask if they’ve ever been convicted of fraud. Ask references whether the candidate was ever disciplined for violating company policy.
6. “I Hear An Accent. Where Are You From?”
You may just be curious, but when it comes to national origin discrimination, this question is a red flag. Asking it could hint that you might discriminate against a potential employee due to their accent or the fact that they may be from a different country. If language fluency is important in the role, ask candidates direct questions about which languages they are fluent in. You can also formally evaluate their communication skills as part of your interview process. Just don’t ask them if they’re native speakers or whether English is their first language.
7. “How Many Kids Do You Have?”
Even if you’ve gone in to the small talk zone with a candidate who has already mentioned having kids, don’t ask this. In fact, even if you’ve already related to each other about having kids, try to avoid asking any further questions around this topic. Asking candidates about their children or if they plan to have children can signal discriminatory hiring practices. Instead, you can ask if they have any commitments that might get in the way of their working hours.
8. “What Are You Currently Making?”
If your business is in NYC, Philadelphia, Massachusetts, Delaware, California, Oregon, Michigan, Wisconsin or Puerto Rico, there is a salary history ban. The ban is limited to certain areas — and sometimes only publicly held companies — for now, but this trend is likely to continue. In fact, lawmakers are already pursuing bans on employer inquiries about salary history in Pittsburgh and New Orleans, so if asking candidates about their previous salaries is one of your go-to questions, you may want to drop the habit sooner rather than later. Instead, ask candidates about their salary expectations.
Other Interview Practices That Can Get You Into Trouble
It’s also important to note that there are grey areas with interview questions. Some questions are not strictly illegal but can uncover information that’s illegal to discuss. To avoid this, stay away from topics like:
- Height and weight
- Financial stress
- Medical information
- Arrest records
- Military service
- Availability to work on weekends
You also can cross legal lines when you do the following things while interviewing:
Making Promises You Can’t Keep
When trying to win over your favorite candidate, it can be tempting to hint at all they could achieve and acquire while working for you, especially if you’re a small start-up with huge potential, but be careful. If you imply a specific career path or promise long-term job security, you could end up with a lawsuit. Don’t say things like, “I could really see you growing with my company. Who knows? If we do well, you could be VP of Marketing and build your own team in the next three years,” or “With your skills and our culture of internal promotion, you could happily work here for the rest of your career.”
Neglecting to Use a Standard Set of Questions for Every Candidate
Why is this bad? Because if a candidate finds out you asked them a question that you didn’t ask most other candidates, they’ll probably wonder why. And their deductions may lead them to believe you discriminated against them in your hiring decision. Asking only female accounting candidates about their availability to work longer hours at month end, for instance, points toward potential gender discrimination. Avoid these situations by using a regular list of questions that cover the basics. Only vary questions when it comes to specific items in a candidate’s background, skills, or experience.
How does the complaint process work? Job candidates have time limits for filing EEOC complaints against you. Candidates typically have 180 days. These candidates can file a job discrimination complaint by mail or in-person with the EEOC. Once their complaint is processed, they can also request a hearing. This is where a final decision is made about the discrimination claim.
If a job candidate files an EEOC complaint or a charge of discrimination against you, it’s terrible for your reputation, and the related legal battles aren’t easy on the wallet either. Avoid being accused of discriminatory practices by understanding the ins and outs of what is and is not allowed in interviews. It is possible to conduct your job interviews in a fair, legal manner and still land strong new hires. Who knows? Maybe you’ll even hire someone amazing — someone you might have overlooked otherwise.
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We’re glad you think so, Marilyn! Thanks for reading SBA.
I am glad I have read this article. It’s so important for HR to know.
We’re glad you found it helpful, Cynthia! Thanks for the comment.
Great article for both anyone new in HR recruiting and those that have been in the HR business for many years, always good to make sure the state or city hasn’t put new laws in place.
We’re glad you liked the article, William. Thanks for the nice comment!
Thank you! We’re glad you liked it.
I am so glad this article got reposted through Hartford’s E-blast. Reading the article, prior to being part of my own company, I repeatedly endured intrusive lines of questioning such as those highlighted (which do indeed betray the questioner’s implicit biases.) I found this to be unnecessary and irrelevant to my work ethic and value as an employee. Yet reading through the comments, it would appear that many leaders did not agree with the messaging. Perhaps this is why I stopped working for today’s employers. Being an employee is not indentured servitude. It is a quid pro quo in which employees are either incentivized to bring their time and best to the company, or marginalized to the point of ineptitude/apathy. I now choose to lead by example and bring my best in order to empower those working with me (notice I do not use the word ‘subordinate’ or imply it on any level.)
Thanks for sharing!
Just more reasons, besides the tax laws, why I’ll never have employees again. It’s safer to just do everything yourself.
But then you are limiting your potential. While that sounds noble and it is admittedly hard to find a really great employee, they ARE out there. Out of about 11 secretaries I have had over the 18 years I have been in business, there is just ONE that I would be more than willing to pay double or triple anyone else’s salary. She was amazing. While feeling the need to micro-manage the others, I actually felt slightly beneath my dear Lauren. She could do almost anything I could do… and some things, even better. She was worth every penny I paid her and then some. If she didn’t move away to start her own family, I would have paid her anything she asked to stay. I truly felt comfortable to get away and leave my office in her hands and know that every last detail would be handled the way I would expect. Your company is only as good as it’s weakest link. Have high standards and hold employees to them. Keep going until you find that needle in a haystack, and your company could be bigger, better and more successful than you even dreamed… with the right people along side of you.
Questions about salary history are now illegal throughout the state of New York for all positions, in both government and the private sector. Don’t be tempted to share this information just to seem cooperative, as it’s just a tactic employers use to determine the lowest salary you’ll accept. It’s better to arm yourself with knowing what others in your profession in that region are being paid, data most state labor departments provide.
How is it that some institutions can ask you any question they want, including all the illegal questions you mention here as “Illegal”. Police department interviewers and background investigators ask you all of these questions and then some. Why do they have a waiver and the typical small business don’t?
As a veterinarian who works with controlled substances and cannot afford to have drug addicts stealing drugs, can I ask an applicant if they’ve ever been convicted of a drug felony or any other felony? Could I ask it in the context of handling controlled substances? I understand the question about submitting to a drug test, but I’d also like to know about a record. How can that not be a valid question? In some industries it might not be so key, but when you’re monitoring anesthesia and handling controlled substances these questions are entirely in line with our work.
It’s illegal for employers to ask you about past drug addiction, but they can ask you if you’re currently using illegal drugs. A person who is currently using drugs is not protected under ADA. You are also allowed to ask about any prior convictions, including drug-related crimes. However, the EEOC has said in the past that if you’re going to refuse to employ someone because of a criminal record it needs to be connected with the type of job being performed. Having controlled substances in your office would certainly create that connection with someone previously convicted of drug-related offenses.
Quite honestly from my point of view is that an employer or a potential employee (doesn’t really matter which) has the human fallacy that if they can get around something they will. Whether its using alternative sources like Facebook, Twitter, general internet postings, public records or one of those pay sites that look up anyone you want. Its almost like its normal to look up dirt. I look for character, principles, integrity that supercedes any modern set of credentials on paper. People in general have downgraded good qualities in exchange for the monetary aspect of life. Priority reversal of the value system. Again, this is only my opinion and not to be taken as argumentative facts. Thank you.
To everybody who is aghast at these rules, and think that employers are somehow having their hands tied around hiring: This is just about interviews. You can’t ask someone about their arrest record or past wages for example in an interview, because it’s not legal. However let’s say you run a child care, upon making a conditional job offer you can always say, pending verification of your legal status to work in this industry. Then you run the background check AFTER the offer and if anything comes up you just say I’m sorry we are unable to complete your offer as you did not pass X part of the background check. The interview / hiring process is intact and fair and thus unbiased, and employers are still able to pick and choose who to onboard. Same thing with wages. Once an offer is extended, it is pending verification and employers can verify with past employers that the did indeed perform that jobs they said they did at a certain wage. If YOU offered a job to someone whose employment you can verify, but you just find out they weren’t paid very much at their last job (but YOU offered them an amount YOU were OK with paying), then the problem is with YOU if you’re mad that you have to pay the amount you already offered and want to lower it once you found out what they made at their last job.
Thank you, Hartford. We are hearing a lot about systemic discrimination lately. These questions are a big part of the hiring process that leads to unintentional discrimination, but none-the-less, systemic discrimination. The interview process often ends up in a “like hires like” situation which becomes “cultural cloning”. You may not even realize you are doing it and this is called “Unconscious Bias”.
Employers/hiring managers, Facebook does the dirty job for you. It is amazing what people are willing to share on Facebook.
Thanks for this article. My business has less than 10 employees, does this interview information still apply in my company’s case? I was under the impression that businesses under 10 employees had more freedom in their interview process.
The rules do vary by city, state and sometimes the size of a business but you should operate as if these rules apply to you as well. I’ve had very small (less than 10 employees) clients who ran into trouble and were accused of discrimination during their hiring practices and – depending on the claim – faced penalties. The EEOC and Department of Labor usually focus on bigger violations, given their limited resources, but that doesn’t mean you are any less exposed to fines and penalties for discriminatory hiring practices.
From the looks of the comments, it seems that many are confusing “what you can ask *during an interview* with *what you can find out about someone you have agreed to hire*.
This article is not suggesting that you cannot find out credit history or arrest history or other home address pertaining to someone you have made an offer to (or have hired). It is pointing out that it is against the law to ask those questions directly of the candidate *during* the interview process, where it can easily be assumed that you are attempting to use this information to avoid hiring the candidate.
If during the interview you determine that the candidate lacks the requisite skills, then the answers to those other questions don’t matter.
And, if it turns out they have the skills and you make them the offer, then the offer will be contingent upon passing the drug test (if that’s part of what every candidate has to pass), and not having serious red flags in their background check (if that’s what every candidate has to pass).
The point of the article is avoiding discrimination lawsuits / issues, by asking things that can be used to discriminate that are not directly related to ability to perform the job.
Once you make an offer, the candidate will give consent to the other items that need to be determined.
It is interesting to me that with all the online employment age discrimination is running rampant! I have seen many, many people that are highly qualified for positions but because of age aren’t considered for positions. Plus there is lot of friends getting preferential treatment and all those that apply don’t have ANY chance, when a job is posted – it is already filled.
The info you have offered right here is fascinating. You put it right into viewpoint for me, as well as it is something I appreciated. I can not wait to read through more of your blog posts both future as well as previous. Thank you for the fantastic attention to detail that you have actually supplied.
Great article. The good rule of thumb is to stay within what is required for the job. As a job seeker, I never liked it when I was asked my salary history. It could only work against me. One time I had a job where I worked for a very abusive boss, and I was searching to get out. A couple of places I interviewed paid way less than I made, but I was willing to make that cut to get out from under the insane guy I worked for. They used my higher salary as a way to weed me out, since they assumed there must be something wrong with me if I was willing to take a lower paying job.
On the other hand, if you make much lower than the company would normally pay, they can use your lower salary to lowball you on the job offer.
The one I have a hard time with is “where do you live”. If you hire someone that has a 2 hour drive to work, they are going to be a problem sooner or later and in my opinion this is a reasonable concern. Of course this is usually on the job application or resume anyway.
Thank you for this comment, George!
Please be sure to double check your states’ law regarding background checks. In California, background checks are only allowed after you have offered the position to the applicant. You are not allowed to run background checks on multiple candidates at the same time and offer the job after return of results.
One common misunderstanding I’ve seen repeated in many of the comments is regarding a person’s arrests. Those don’t matter… it’s CONVICTIONS that do. Plenty of people have been scooped up in arrests and then acquitted, either for lack of evidence, mistaken identity, or actual innocence. Have any of you been arrested and convicted of a crime? If you’ve paid a ticket for an expired parking meter or cruising down the interstate a bit too rapidly, you were. That’s why the application and the interview questions should both be worded very carefully and clearly, looking for felonies and serious misdemeanors, not traffic violations. Even then, a conviction may not disqualify a person for a specific position, depending on its nature and circumstances.
Thank you for this comment, Sherman.
Andrew H, I’m really sorry to hear that you’ve had that terrible of an experience. That’s really rough. It sounds like you’re past thinking about hiring but if you ever go for it again, there are avenues to help you cut through the crap, find better employees and get them to work diligently. At the very least, consider an employee referral program (if you haven’t done that already, which you probably have) and/or think about working with local schools to get a pipeline going. Not sure your industry but a lot of trades, manufacturing and warehousing are really getting stuck for good folks and you sometimes can create partnerships with trade schools where you can hire directly after graduation in exchange for being in the school on set occasions to talk to the students about work expectations, work ethic, good work habits and WHY those are so valuable.
These questions have been illegal for a long time, folks! Ask your HR people- and you should have HR help, given some of the basic questions some of you are asking that are a little scary. They’re meant to avoid you making hiring reasons in a discriminatory way. For example, if you have a 9-5 desk job, do you need to know if a person has a family and/or kids and how many? Why? Why do you need to know that? So you can determine if they’ll need to leave early sometimes and not hire them if they do? That’s discrimination. You can say “Can you work 9-5 on a regular basis?” That’s not discriminatory, it’s simply ascertaining if a person can do the work as described. You can’t say “how old are you?” but you CAN say “are you over 18?” (because under-18s need work permits in many states). You can’t say “what kind of car do you drive?” but you can say “Do you have reliable transportation to get you to/from work or to/from clients as needed?” When you ask questions that are RELATED TO THE JOB, you shouldn’t worry so much.
For those who are bumming about how little you can learn about a person if you can’t ask these questions and how you “can’t get to know people anymore”, I highly suggest some interview training! When you’re really good at it, you can pull a lot of information (legally) and really get a sense of the person. Asking the right questions to make sure you get a good EMPLOYEE instead of a good ACTOR is your goal. After all, how many times have you had someone that seemed great in the interview and you shot the shit all day and you loved that person- and then they stole from you, lied, didn’t show up, had a drinking problem, etc. Spending your time on “does this person like what I like?” is less important than spending your time on “what’s this person’s work ethic going to be like” or “would I be a good boss for this person or would we clash too much to be effective?”
I’m not a Millennial but I speak and teach on the generations in the workplace at different organizations and I’ll tell you that everyone moans about them getting a trophy for everything but who gave them the trophies? They didn’t toddle out to the store and buy ‘everyone wins’ trophies in first grade. Blame the folks who fostered that culture and never wanted to give them bad news. And another thought- they watched you Boomers and us older X-ers kill themselves at work only to get laid off when the dot.com bubble burst, in the recession in 2008 and anytime a company wants to send their work overseas. They watched you get heart attacks, ulcers, have affairs at work and miss all of their family events. They don’t want that. You didn’t make it look good, so they’re not buying the “live to work” message anymore. They work to live. They’ll work hard if you don’t treat them like crap-the job market is too good for them to sit around and take abuse. You have to educate them more on workplace skills and expectations but they can do it. They want your advice, your guidance and your support. Why not make your legacy be leaving great workers behind you when you retire- rather than your legacy bitching about all they do differently?
Signed, HR Lady who handles small businesses, non-profits and startups with 2-200 employees. (I promise I see your pain, I really do, I live it with you every day.)
Thank you for your helpful comment, Jill!
and the #1 question you have to ask yourself….. “who owns this company anyway? Me or the government?” PC is a disease!
Last year my boss, upon interviewing told me that the salary just dropped by about 8-10,000.00 a year, but told me that it will go back up in two to three months. this is one of the reasons I did not decline the position. after two months I inquired about it with higher up management. they replied that they were unaware of any such thing. I was not the only one my hiring manager told this to either. Two other people were told the same thing when interviewed and hired. this was by the same manager and was within about between my hire date and theirs.
Do I have any recourse? I was there for about 8 months with no raise at all? and was told the salary was not going to go lup to what it was. my co-workers that were hired prior to the salary dropping, were all making about 10,000. mare than me and I was over producing all of them.
Also, after being told I could not apply for an upper level management position without first taking an entry level position. (the entry level position required no previous experience, ( 18 year olds were being hired and some were hired with this being their first job). I explained I was not looking for entry level position, and in fact, was looking for an upper management position, as I had with a resume with over 15 years of multi-level District Operations management and District Facilities management experience, Additionally, I had a Masters Degree in Management!!!. I told my boss at the interview I was not here to be an entry level sales person like the 18-25 year old employees. I expressed that I had a mortgage and a great deal of financial obligations. My hiring manager said that I was well qualified for the position, even said I will do really well. However, I had to start at the bottom to learn the company positions so that I could effectively manage a team. He said that company policy requires that everyone has to start at the bottom, but was only required to do so for 4 months and could apply for management position then. After four months, I spoke to the regional manager, I requested to take an open management position with the company. To my surprise I was told that I had to be there for a full year before a promotion was possible. I was devastated and felt tricked and lied to purposefully because my manager wanted me on his team because he knew how much I would produce.
Do I have any recourse here as well? I am in financial distress now as I took a position that I knew would cut into my financial savings, however one promoted would recover. because this did not happen I have suffered financially and have had my credit effected because his promises of salary increase and promotion never happened.
Agree with the very first comment from Debbie: I used to work a position that required me to be traveling almost 200 days a year. It’s not a job for someone with a family and kids which is why I quit. There’s a reason why that industry is all single guys. It’s pointless to offer someone a job that will quit before the traveling season is over (summer) because they complain they are never home enough to see their family.
And this is precisely why it is so much more attractive to outsource overseas or to automate with robotics.
Why deal with pesky employees that are just going to wine and complain and then sue over stupid (expletive).
With liberal states like CA it makes no sense to hire unless you have to. Some companies have no choice but to. I would much rather go fully automated if I could… I would rather not have to deal with minimum wage, all the stupid crazy payroll taxes and regulations, and instead I would much rather outsource overseas or employ a staff of robotics.
I think Amazon and Uber are taking advantage of liberal policies but they are doing so wisely and I understand why they are – for every pesky employee you do away with, it is a future lawsuit avoided as well.
Its absolutely ridiculous that you cannot ask basic fundamental questions during an interview in order to establish if the employee is a good fit for your company. States like CA are the absolute worst. No wonder companies have moved from our state so quickly over the years.
People are worried about automation taking over? Or work being outsourced overseas? Well then people should start voting in politicians who will do away with these ridiculous liberal policies that have led to the loss of American jobs.
I may be mistaken, but some of this doesn’t quite seem to ring true to me. As I understand it, discrimination (at least from a federal perspective) is illegal when it pertains to a few specific protected classes regarding Race, National origin, Sex, Color, Religion, Disability, Age, Pregnancy, Familial status, and Genetic information. Beyond that, employers are free to discriminate, even openly and vociferously, any way they want. They can hire or fire because of weight, hair color, body odor, pleasant demeanor, simple dislike, fear of cats, lactose intolerance, opinions about the validity of global warming, truly anything. I’m in an at-will state. As I understand it, I can be asked any question at all, and not hired or fired for any reason whatsoever, stated or not, including no reason at all, as long as is isn’t because of Race, National origin, Sex, Color, Religion, Disability, Age, Pregnancy, Familial status, and Genetic information. Furthermore, in many cases, discrimination against a protected class may still be legal, when there is a “bona fide occupational qualification”, discrimination that is based on a job requirement that is “reasonably [and demonstrably] necessary to the normal operation of that particular business”. For example, airlines set mandatory age limits for their pilots based on statistically verifiable increases in health risks with age, even if the individual pilots are healthy. And yes, I do know that many states have their own additional limitations.
Sounds like all this political correctness nowadays makes it impossible to be personable or to have a small talk…
Why are you running content with replies from 13 months ago? Comes off as pretty dumb.
Hi Peter – This is because we made updates to this article recently, so we re-shared this content. We want to encourage engagement and conversation with our readers. Thank you!
Clearly, we are in a new age of hiring. After 30 years of disclosing high school graduation year, zip code, family history, cultural background and more to potential (and real-time) employers, I am on the other side of decision-making. I keep the interviews short and crisp, as whatever I assess in the first 15-20 minutes gives me a gut check re: fit. If I need to drill deeper, I do a mock exercise (e.g. for trainers) and that completes the picture. I find references are only partly helpful, as they often seem biased.
We have a conundrum for which I would appreciate feedback. We do not yet have a hiring policy re: Cannabis use for our mental healthcare agency. In Massachusetts, Cannabis is legal. If an applicant shows a Cannabis card, or an existing employee gets one, are we obligated to allow use on the premises? If we require urine drug testing, surely that employee could show up positive, even if the substance is ingested off-hours or off-premises. If an employee uses it for pain or seizure management, how can its use be withheld (analogous to insulin for a diabetic) without risk of litigation? The jury is still out re: the extent of ‘judgment impairment,’ but I wonder, would an alcoholic be hired to drive a truck?
The reason this is an issue today is that we have an otherwise qualified candidate who pulled out a Cannabis card for HR during closeout conversation.
Thanks in advance for any wisdom on this topic.
Are we allowed to ask what Football team they root for? Cause if it ain’t the Steelers, we don’t want em.
Very helpful content. Thanks.
Thank you, Krishna!
As stated above, age related questions should not be asked during the hiring or interview process until you have narrowed the field to a final candidate. In many cases, the employer provides the finalist with an offer letter contingent upon the successful findings/results from a background check and drug screening. This process will require the candidate to complete a form that includes DOB, SS# and home address.
I just take out a list of numbers, starting with 3 digits, read them and make them repeat them backward. If they get to 7 digits, they’re a prospective hire. I’m sure that’s illegal too! But don’t worry, soon the government and insurance companies will tell you who you can or can’t hire based on complex algorithms utilizing big data including social media, driving records, criminal records, video from public places, etc. etc…. sort of like the Dark Mirror on Netflix.
Please correct the title of illegal questions. They are not illegal to ask. Only if you base your non hiring decision based on the answer. If you ask a woman about her family and she discloses she has children, you can smile and comment we love applicants with experience caring for children, offer her a job and you have done or said nothing illegal.
First a statement: Our standard work day is an 8 hour shift with 1 hour of break time and our standard hours are 8am to 5pm with flexibility on +\- 2 hours around that window. Employees are expected to work on site in the office. Permission to telework on a regular or exception basis must be approved by your direct supervisor. All employees are expected to comply with this policy.
Then the question: will you be able to comply with this policy under normal circumstances?
Next question. How long do you estimate your daily commute would be? Are you comfortable with this?
Next question. We require all candidates to submit to a drug screen, criminal background, and credit history check. Do you agree to be subject to these?
Its a real shame that making sure an employer hires a safe, dependable, and hardworking candidate, at the appropriate wage to the employer, is pushed aside by an attempt to correct a perceived bias. A better approach might be to preclude certain information on an initial interview or application however a subjectivity to employment, at final interview stages, should undoubtedly allow for all directly and peripherally relevant information.This presupposes a sophisticated business that has a multi-step interview process… most small business do not.
I happened to come across this article now. Nice.
Some questions may be illegal to ask, but what about the company policy? For e.g., asking “Do you use drugs” is illegal, but as part of the hiring process, potential candidates are required to undergo a drug and background check. Isn’t that perfectly legal?
I have to disagree with some of these as in my profession you are required to be approved by the state which requires background check, finger printing, and MVR so we MUST ask about previous arrest and driving record as by law I can not hire you if you can not pass theses requirements. If I hire someone and they are rejected and can not pass these requirements I have to release them or be fined.
Article begins with “EEOC has laws”.
They get their own laws?
I believe many of the responses missed the message of the article. I believe the message was be cautious with verbal questions asked. Be consistent between candidates with questions asked. Don’t ask a question verbally is the information is available. As with some of the previous responses I’m in California, likely the wackiest state as far as employment practices.
No you don’t asked when they last used drugs or whether they had problems with the law. How about at the end of the interview you simply state it’s our company’s policy that we do background checks and drug testing of all our new hires so if we make you an offer we will have you come in and sign some releases.
As far as salary you don’t ask what they are making. But you can ask what their salary requirements are for the position you are looking to hire for.
I could go on but I think I’ve made my point. Yes it’s a strange world we live in and getting stranger
Thank you for your thoughtful comment, Tom!
IMO, these regulations are pure poison and create a reverse trend toward special referrals of new employees through familiar channels just to sustain growth as a medium or small business. Hiring practices are key to the quality of your goods and services, also to the safety of your workplace. It seems that “judgement” and “discrimination” have become bad words and are regarded as bad deeds even when applied to individual job applicants, granted that discrimination against groups is harmful to society.
“What Part of Town Do You Live in?” “What Class Were You in at Rydell High?” – I am an observant person and I can tell by looking at the candidate if they are a minority and how old they are. Perhaps we should interview candidates using the “blind interview process” like on the TV show “The Voice.” Blind? I meant visually impaired.
I’m curious where these types of infractions should be reported. I routinely see these questions on job websites. There is one that I saw two days ago on a Linked In job application that flat out asked for birthdate. But many of the other questions are not that unusual. All applications ask for address, so how does that fit in with the “what part of town do you live in” question?
I do background checks at hiring, any time I have a reason to do so after hiring and every year as a standard practice. I also do drug testing. No exceptions, mainly because my customers require it and they do so for a good cause. I had applicants lie to me about their background knowing that they will undergo a background check, they even submitted to it and after I got the results they asked when they can start, really?
In California if I fire an employee because he is repeatedly missing days at work State of California sends me a letter saying that not showing up to work is not grounds for employment termination and he gets unemployment benefits.
Everybody regulates and scrutinizes the business, who regulates the dishonest employees and who checks the State for doing the right thing, and if there is a problem there are no consequences for the employee or the State granting benefits when they are not due. Yet a business gets penalized, sued, and our rates get raised.
The business is always the “bad guy”, guilty until proven innocent, laws should exist, work and be applied both ways, that is Fair Employment Practices, for all.
It seems to me that asking about a person’s education and experience is discriminatory, because as we know, quality of education and employment opportunities are not randomly distributed in the population and certain protected groups lack these advantages. So let’s remove those, shall we?
And certainly trying to find out about an applicant’s criminal background is verboten, right? Except how does one handle a situation where a person made threats at a former employer or raped a co-worker? If anything bad happens, the new employer would be blamed for not doing a proper employment screen. My head is spinning.
Let’s just have them fill out the name and address where they want their checks sent. Madness.
Is it inappropriate to state you cannot consider students for a position? We have a university around the corner and students are transient, gone for holiday breaks… constantly needing schedule changes. I’m seeking long term employees and state in position description “must be a permanent resident.” I always get lots of applications from students but it just doesn’t work for me.
very nice submit, i certainly love this website, carry on it
Thank you, Cherly!
Just a reminder, at least for employers in the State of California, you can only perform a background check on an applicant AFTER you have made an employment offer to them. Be mindful of carrying out background checks on multiple candidates at the same time as they are notified of the check and if you haven’t made them an offer prior, it can get you into hot water!
The only question i have a problem with is the : “Have You Ever Had a Brush With the Law?”
Under Florida law, you can ask have you ever been convicted of a crime. And you can ask ” if so please explain “. I verified this with our Florida Attorney on 07/17/18. If the candidate has a long list of convictions even if they had adjudication withheld, it would come down to the either the company or the managers fault, if an occurrence would happen when hiring a new employee. The Attorney also recommended this issue is usually related to housing applications, not service companies. You have to assure your clients you hire background checked employees.
I think it is misleading at best to say these questions are illegal.
I have reviewed the EEOC’s website pages that summarize applicable law. What I find is that (with one exception only) there are no direct prohibitions (illegalities) regarding what you may or may not ask a job applicant. Rather, these categories of questions (if indeed asked) create a risk of making it “appear” (simply because the question is asked) that you may be discriminating on a prohibited basis.
But let’s be clear. Aside from a single exception, it is not the question itself that is illegal. Rather, it is particular forms of discrimination that are legal.
Thus, you may in perfect legality ask questions in all of these categories (save the single exception), and preserve perfect legality in your conduct so long as you do not actually discriminate on a prohibited basis
It’s an important distinction. To say that the government has prohibited particular questions is offensive. It suggests that the government is a far more oppressive “big brother” than is truly the case in this instance. Such confusion — between what’s truly prohibited and what’s not — is unfortunate.
The single exception relates to disabilities. Evidently, the law does “generally” prohibit questions in this area. However, even this prohibition is limited. It is perfectly legal, for example, to ask what accommodations would be need so as to enable an applicant to do particular tasks.
A job offer letter should be given to a candidate who is being hired. There should always be a probationary period for new hires. The offer letter should have a clause that makes employment contingent on completion of mandatory forms and a background check and anything else that your may want to know (that does not discriminate)..
There you have it, folks. We can’t ask any questions that might actually help us know anything about the applicant. We must hire people based on virtually no information. A few weeks after they are hired we will realize they are a horrible fit for the position/company, and it will be nearly impossible to fire them. Government control at it’s finest.
Well as a 5 business owner, I feel that its important to know as much as possible, about the applicant, b4 hiring.
I had clean cut, polite applicants that I did a credit & criminal history ck on, and they ripped me off, for products, money, tools, equipment, performed time card fraud and more.
So I think the government may have good intentions, but this country runs by, on and for business. Oil companies for example.
So I slightly disagree with the EEOC and DoE, dept of labor.
Mostly worthless article, but it shows how the author thinks that “real world” should work, in his/her opinion.
Does an “at Will ” contract allow me to terminate without a reason? It seems that almost anything you say when terminate put you in a legal trap. My standard answer nowadays is just we don’t have any more work for you, of course that leaves me paying unemployment benefits.
In other words, you really can’t ask any questions that would actually let you get to know the person you are hiring. It is becoming tougher and tougher to hire without taking on liability. This is, unfortunately, one of the driving factors that is a great opportunity for those who are driving automation and artificial intelligence to replace workers. It is also the reason I won’t hire to expand my own business beyond my own family. It limits my business growth however.
We have been incorporated for over 22 years. Never have I seen the lack of respect & self-entitlement this generation created. We have tried to hire, but we do not have time to read 150 applications for maybe one or two potential applicants. We gave up looking for people to fill positions and are downsizing because of what this article reflects.
When we were young, we had to go out & prove ourselves to the employee and work hard to impress. Not look for loopholes and ways to get out of work. Grow Up! Call me sour, but I am this way due to the experiences I have had in the last 5 years… not the 17 years before that when people wanted to work. The sign now states “We Are Not Hiring At This Time”. Hope that does not get us in trouble. UNBELIEVABLE!
Certainly, an application should avoid all these “no-no” questions, but many don’t. For example, old applications may ask for previous felonies and/or misdemeanors, but no all states prohibit it. Make sure your applications are “scrbbed” yearly for compliance issues.
In view of these illegal questions, one can also assume that certain required employment forms and ID’s (i.e. Form I-9, drivers license, unredacted MVR’s, etc.) should not be presented or requested until after the employment offer is made. Otherwise it becomes part of the hiring decision making process and that would be illegal also.
In the interview phase, just ask questions pertaining to their qualifications, work experience, and education. Leave the rest to an HR person who knows how to navigate that mine field. If you don’t have a HR person then make sure that the interviewer is educated in HR compliance. Also, for goodness sake, don’t let inexperienced, low-level employees participate in an interview without supervision. After all, it is not their job to know how to interview. Otherwise they may ask the wrong questions and be a catylist for a lawsuit.
Great article! It is important to be aware of the changing landscape in interviewing, e.g. salary history question on applications, “Have you ever been convicted of a crime?” question. These are very typical questions on job applications and employers must be aware that they could be illegal. I am an HR Consultant and deal with all sorts of clients. This is a great article that I shall be sharing with others.
I’ve noticed more times than not, when applying for a position online, they will either ask for your date of birth or the year you graduated high school. I had thought it was illegal to ask this but I’ve seen it so often figured it was no longer illegal. You can get someone’s age by simply looking them up online. It’s a shame that age it would even matter.
Acutally, this isn’t so bad. Follow this and you get all the answers you need:
1. require a criminal background check from EVERYBODY (avoids being accused of singling out). This gives you address, aliases, age, SS#, AND the background check.
2. Use your nterview to measure skills set, not to interrogate to see if they are lying. Here you can see communication skills, see if the nails are too long to work! You can also look at their physical appearance for health issues that may result in coslty absences.
So you don’t need to ask. Just be observant and don’t pick that person!
Does a candidate have to give permission for a prospective employer to run a credit or background check?
When I first was offered a job, of which I retired from. I was asked if I wanted the job?and I had 90 days to prove myself. I was the only one that would get myself fired. Funny thing was I outlasted the HR people. Maybe I should have interviewed them.
Wow, lots of cynicism / disillusionment here among responders. Once you’ve been involved in a lawsuit you might think differently.
I have two suggestions about how to deal with the advice in this article.
First, remember that the list is of questions you can’t ask. Just because you can’t ask them doesn’t mean you can’t use other means to learn the same information, if it’s somehow important to you. You can avoid a lot of the obvious gotchas by being up-front about parameters for the job – salary range, required testing or certifications, background check to be performed, skills that will be tested during the interview process, education, etc. So many small companies do a poor job of this and then double down on their incompetence by asking forbidden questions out of ignorance. Take the advice given here in the spirit it is intended.
Second, try to organize the interview process so it’s more focused on the skills you need. Don’t just ask someone if they have specific skills. Hand them sample problems to solve. In the IT hiring space this should be mandatory, in my opinion. Give them scenarios to work their way through. Ask questions that will also give them a chance to talk about their background and life skills.
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Judy D: At our company, we ask the same 8 questions of each applicant, to stay consistent and safe.
Are you willing to submit to a background check? (regardless of answer, we still continue with the interview)
What are your salary requirements?
What is your availability?
What do you know about us?
What is your proficiency in ABC program?
Why do you want this job?
Why should we hire you?
This is crazy, no wonder we are going to be replaced by robots.
They aren’t looking for a law suit…..
Can i ask if they drink milk or eat meat?
I own a search firm. We inform candidates that they include in a cover letter — or during an interview, answers to all the questions that a company (organization) wishes they could ask. “I am 56 years of age, I am married to a lovely woman and we have three children (two in high school and one attending State University). We are Lutheran and attend church occasionally. I earn $84,000 in my present position with typical benefits. I am comfortable with the salary range of the position I seek. My oldest daughter is gay and we love her deeply and support her lifestyle. I was arrested during my college days for a DWI on my way home from a football game party. Our family enjoys summer camping trips and we follow our youngest children to all of their school volleyball games. I have never been disciplined by any employer during my work life.” If an employer doesn’t hire you because of your statement, maybe you do not want to work for them.
#2 and #4 seem a bit odd to be illegal to me. Mainly because most jobs I’ve applied for ask for Date of birth on the application; so my age is right there on the application to begin with. Also it would seem odd that anyone would straight up ask an applicant about drug use; but drug screenings are rather common place in job interviews. Very informative article regardless.
I am absolutely amazed that we are able to get any hiring done in this litigious society. Gone are the days of employers actually knowing their employees names and about their families. Who knows, you may get sued for getting “to close” to them. Employers cannot ask any particulars about someones family so you’re stuck with what you read on a resume and see in a face to face interview. If you hire someone that just doesn’t fit in it’s very difficult to get rid of the person.
I consider my employees like family. If one of the needs something, whether it be time off or some money, I usually take care of them. I want my work place to very comfortable and an easy place to work. My employees know this and open up to me about some of their problems.The only way I know my employees needs is the fact tat they open up to me and we talk. I have asked some of these eight questions. Not to be discriminatory but to better know my potential employee.
Our society has become WAY to politically (in)correct. This leads to strictly mechanical (not organic) working relationships.
To all the derogatory comments about what an employer can & cannot ask. You should be interested in whether the person can do the job and do it well. Not where they live, how they live, the car they drive, their marital status, the medications they take/medical conditions, salary history, etc.. Not appropriate questions under any circumstances. If they come to the interview in a wheelchair or are obviously blind, do not ask about it. That is NONE of your concern. Base your questions on each individual resume you receive and the actual interview with the potential candidate. You should be reviewing those prior to the interviews and doing a quick second review again just before the actual interview. Do your due diligence prior to the interview. Regarding the “MAJOR CORPORATIONS” and their blatant disregard for federal and state law, no company or corporation is too large to be brought to its knees by a discrimination lawsuit and one tenacious, savvy attorney representing their client. Rome fell, your company can too. Follow the law and quit griping.
None of these things are difficult if you are focused on finding people who can do the work at hand instead of people that fit a specific age, gender, race, etc. which has nothing to do with with the actual job. I describe the tasks that are required, including passing a security check, possible drug and credit checks, any heavy lifting. Then i ask every applicant if they after comfortable with these requirements. I don’t care of they have children, their age, where they live or their physical/medical history. Just focus on whether or not they can do the actual job.
@Debbie K – Credit checks, drug testing and those sorts of things come with a consent signature from the applicant
This is a broad generalization. Each state varies. Some you MUST do certain things to have for employees on any part of the company’s insurance. Luckily, we are located in a right to.work state. It greatly depends on the business how much info you need from the candidates. Prior salary is utmost of importance, and if the person is currently employed. Big factor.
Early in my career, I started out in what we then called employment. Part of the joy of getting people in the right job was getting to know them well enough to know what would be a good fit! While I understand the pitfalls, this article may be an example of why so many find corporate life impersonal and uncaring.
One of the dumbest issues I’ve ever run into has been for HR people to discriminate against someone who doesn’t have the latest and greatest email address. I have been told by several that when they see “older” email addresses they don’t even bother to read the cover letter, let along the resume. I know the policy in large organizations is to scan the applicants’ resumes looking for “key words”, but I’m convinced they’re missing out on a lot of very well qualified candidates because they let the machine do their work for them. I have known numerous HR “specialists” who could barely write a complete sentence — let alone a cogent letter, yet they sit in judgment of people often more qualified than they are. I’ve been successfully self-employed now for several decades, and I’m certainly glad I’m not in today’s job market. I keep reading reports that key industries “can’t find qualified applicants”. Maybe they’re just not looking hard enough.
I’ve certainly been asked some of these questions on interviews by unprofessional idiots! I was too young and naive to know better so I answered them.
After reading this article I would like to know just what we are allowed to ask. I bet there are fewer than 20 questions we can ask.
Good article. Too bad that things are like this
Since the questions about date of birth, prior wages, where they live, etc, are very standard on job applications, does that mean our applications are asking for too much information? We have a separate questionnaire for applicants that gives us written permission to run a background check and a yes/no if they’ve filed for bankruptcy. Is that overly risky?
B Blank- you can’t (by law) ask about arrest record at an interview, but you can, with their consent, run a background check, which will get you all the information needed.
Jim Olt- you don’t ask for driver’s license or ID at an interview. If a person is hired, this information (such as DOB, etc.) had to be submitted anyway, for onboarding/work authorization, but there is no need to request it beforehand.
Debbie K- it’s standard for companies do to background checks and credit checks- but not to ask about these during the interview process. This falls in the category of not asking about things that can be easily checked by other means, so as not to seem discriminatory. The same with drug tests- you can say during the interview that your company does drug tests as a standard, and ask if they are comfortable taking one. This removes the bias based on past and not current use and give the interviewee time to explain any possible results which may come up.
With regards to judging you by the car you drive, if this can be proven then it can be grounds for discrimination.
Excellent article, with some very good points to be mindful of.
You list arrest record? Are you seriously saying that employers do not have the right to know if a person has an arrest record? That must be flawed.
I have a restaurant that is open 7 days a week ? and all holidays- Can I ask are there any prior commitments or obligations that will not allow you to work nights, weekends and or holidays?
Are you looking to supplement your current income?
Will this be your only employment?
Are you currently enrolled in school?
Re: #1: I’m presuming you handed the individual an Employment Application prior to the interview. That said, #1 is 100% irrelevant inasmuch as he/she put the home address on it.
Once had an assistant department director come to me because her director had just asked an applicant if he’d been saved. We went to HR, where that director had a melt down. He was allowed to resign.
As for credit history, etc. you can investigate but not directly ask.
This is a good introductory article, but if you really want to know the details around what pertains to your business and hiring practices, it is probably best to engage someone who know HR practices in your area/state and work with an Employment Law attorney to help guide you in your hiring/interview practices. For those of you who have asked questions about minors and age discrimination, you should click through the link provided above for ADEA for further information about what qualifies as age discrimination and who the law applies to. That is the federal rule as well. You should also check with your state and local municipalities to see what they require as it applies to minors (working papers, hour restrictions, guardian/parent notifications and approvals, etc.)
The use of drugs is an interesting highlight and I know from personal experience, that if you are seeking a job in pharma, bio-tech, and other medical/pharma industries, it is pretty standard practice to have to submit to a drug test before being hired. It seems that while they may not be able to ask the question, they can certainly require that all employees submit to the test and if they don’t, then it may be grounds for not hiring. It stands to reason that may qualify as finding out by different means other than asking the question and if it is a standard practice, then it is not singling out anyone individual, its required for everyone.
Again, if you need to know your candidate’s criminal background for hiring purposes, then it would seem to stand to reason that it should be done as a hiring practice for all employees as part of their hiring process. Again, you’re not asking the question directly, but you are attaining the information in another way.
Are we allowed to ask them when they could start?
Debbie K – Please keep in mind that just because an interviewer at a major corporation asked the questions, doesn’t mean that they were within their legal rights to do so. The article is about what to do to avoid opening yourself up to litigation. As a smaller employer, I can’t afford to be sued.
It seems that we are working for employees and not the other way where they work for us. What a shame that we are trying to do business in a safe and peaceful manner but cannot do it.
Who was that Einstein who wrote this law?.
D. Berry, I would think in your situation that a yes or no question would be the best approach. “Are you at least 15 years of age?” “Are you at least 18 years of age?” …or whatever the minimum age is that you are capable of hiring in your state and industry. This avoids asking directly how old they are, while allowing you to ask if the applicant meets the minimum age requirement. It doesn’t make any assumptions about their age, and it doesn’t require that you calculate their estimated age off of their grade level in school, which could vary by a few years if a student had ever repeated any grade levels. The applicant’s age will be confirmed when completing the I9 for employment eligibility verification as they will have to provide an ID or birth certificate to corroborate their yes or no answer.
good to see what is allowed and not
I am just wondering if the request for a candidates’ age also pertains to minors. I hire a lot of teens and sometimes I will have a teen come in that isn’t of legal working age and I have to tell them that they are too young. So when I have a younger candidate come in and ask about a job, I do sometimes ask what grade they are in. Is that illegal?
No – You cannot ask age. You can say something like “The minimum age to start is 15 – Do you meet that requirement?” And ask every applicant.
The article said age discrimination only applied to people over 40 and state laws do have age minimum requirements. If under 18 you may need working papers.
This was extremely beneficial information.
Is the questions “would I have any problem bonding you [ to insuring your honesty]” legal?
also, “would you have any problem adhering to our 40 hour work schedule”?
If I gave the same test for math and grammar and use of the English language to all applicants for a single job legal?
Can they ask you for your driver’s license?
Certainly has your age.
Even just your driver’s license number.
I completely disagree. When I work for large companies, not only do they do a investigation into your credit history, arrest history and other governmental issues, they also dev into your family life, especially if travel is part of the job. They also indicate they can drug test you at any time…and want to know you present living location. The only no no was race, religion, sexual preference. They did judge your appearance, car you drive and other indicators of success….these are MAJOR corporations.
You want someone that will fit into your organization, that will be honest and reliable. You have to test and verify.