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Want to ensure you’re compliant with HR laws regarding applicant interviews? Our HCM partner isolved offers this guide to interview questions you may not know are illegal, so you and your HR staff can focus on hiring the right person.
The point of any interview is to get to know as much as possible about a potential job candidate. Making sure a possible candidate is a good fit for both the position and the company at large does well for all parties involved in the end. The process of determining these factors is usually done through perfectly legal questioning. But on occasion, even unintentionally, illegal questions can slip through. Both interviewers and interviewees should be aware of these subjects to help make sure everyone is playing a fair game.
Which subjects are off-limits?
Any questions that might require a candidate to reveal their age, marital status, race, gender, religion, sexual orientation, or national origin are not allowed. Any disability, pregnancy status, military discharge status, and arrest/conviction record questions are off-limits as well. The only time these types of questions are allowed is when they directly relate to the position in question. The intent behind the question counts for a great deal of the argument of whether or not the subject is legal.
We’ve collected a few of the common interview questions you might hear during an interview that are actually illegal.
1. Are you married/do you have children?
While these are often seen as fairly benign opening questions, they are illegal and should be avoided. Employers could be fishing to see how much time you would be able to commit to your job. Not only might the questions reveal your sexual orientation, but also your intent to have children in the future.
It is allowed for an employer to ask questions relating to the work at hand. These could include “What hours can you work?” or “Do you have other responsibilities at home that might interfere with specific aspects of the job, such as traveling?” or others along these lines.
2. Which religious holidays do you observe?
This is a fairly common workaround to the more outright question of “What religion do you practice?,” which is against the law to ask in an interview. The question’s intent might be to simply see if your lifestyle would conflict with the company’s normal working schedule, but it is illegal.
While asking any question that might reveal your religion is against the law, others can be asked regarding schedule. You can be questioned if you can work on certain days, such as Friday or Sunday.
3. Do you have a history of drinking or drug use?
Since the Americans with Disabilities Act of 1990 passed, employers cannot ask about your drinking habits. The treatment of alcoholism is covered under the act. Therefore you do not have to disclose your current or former treatment for it before securing an official job offer.
An employer does have the right to ask about current illegal drug use, but they cannot ask about former drug addiction. A person who is using drugs currently is not protected under the ADA. A legal question a candidate might be asked is, “Have you taken any illegal drugs in the past six months?”
4. What country are you from?/Is English your first language?
Questioning an interesting accent might be innocent unless it delves into illegal territory by revealing the nation of origin. While it is legal to ask and be sure a candidate is authorized to work in a certain country, inquiring about nationality is not.
Asking an interviewee if English is his/her first language may seem useful, but the question is illegal. However, an employer is allowed to ask about any other languages you might speak, read, or write fluently.
5. When did you graduate high school?
This type of question is often meant to find out a candidate’s age, and it can come in several forms. A potential employer might ask when you graduated college, how long you’ve been working, or even your date of birth. But all of these questions are illegal in an interview since they could reveal your age. An employer is only allowed to ask how long a candidate has been working in a specific field or area.
How should a candidate answer if an illegal question is asked?
Refusing to answer a question, even if it is illegal, could greatly diminish a candidate’s chance of getting a job. While HR managers are likely aware of what and what not to ask, other possible interviewers in a company might not be. How can an interviewee respond without insult or giving up excluded information about themselves?
Redirection of the subject is often a good solution. If a question is asked about a candidate’s marital status, the conversation can be turned back to the interviewer. “Are most people on the team married? Family seems like a high priority at the company.” Redirects allow the flow of the interview to continue without actually answering the question or being adversarial with the interviewer.
If the illegal question is still pushed, another option is to ask why the answer to the question would be important to know. This will give the candidate an opportunity to understand the role at the company while allowing the interviewer the chance to catch an interview question mistake before it goes too far.
Whatever response is given, remaining calm and avoiding a defensive attitude is key. People who aren’t as familiar with legal ramifications of interview questions can make innocent mistakes. But candidates should always be sure that they know their rights as well. In order to be prepared for an interview, applicants should brush up on common interview questions, and educate themselves on what is and is not acceptable conversational etiquette for professional career interviews.
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