It’s important for job seekers to know their rights when it comes to illegal job interview questions.
It’s also important for hiring managers to educate themselves on what questions they need to steer clear of. Not only because they could get in legal trouble. But because asking about certain topics, even unintentionally, could make candidates uncomfortable and scare great talent out the door.
Categories To Watch Out For
Federal and state laws prohibit employers from asking questions about:
- National origin
- Marital status
- Arrest and conviction record
- Military discharge status
- Pregnancy status
Many times employers ask an illegal question without meaning to. Here are some examples of questions not to ask, why an employer might ask them, and what the employer should ask instead.
1. “Are you married/do you have children?”
An interviewer might ask this question because they want to know how much time and commitment the candidate can devote to the job.
A better way: Ask, “What hours can you work?”
2. “What religion are you?” or “Will you need time off for any religious holidays?”
An employer who asks this question probably isn’t concerned about the candidate’s religious affiliation. Instead, they want to know what days the candidate might regularly request off from work.
A better way: Ask, “Do you have responsibilities outside of work that will interfere with specific job requirements?”
Or, if you’re worried about the candidate’s ability to work a specific day of the week, come right out and ask. “Are you available to work on Saturdays?”
3. “What prescription drugs are you currently taking?”
The Americans with Disability Act (ADA) makes it illegal to discriminate against a qualified candidate based on mental or physical disabilities.
A better way: If you’re concerned about a candidate’s ability to do the job, you can ask about disabilities. But only after you’ve made a job offer. And only if you ask the same question to every candidate who gets an offer for the same type of job, not just a candidate whom the employer thinks has a so-called “obvious” disability.
4. “Is English your native language?”
This question touches on national origin, another class of question that federal and state laws bar hiring managers from asking about.
A better way: Ask, “Are you legally eligible to work in the United States?”
5. “Have you ever been arrested/convicted of a crime?”
It’s illegal to discriminate against a candidate based on his or her arrest and conviction record. And in most states, employers can’t automatically disqualify someone from a job because of a conviction. (An exception: if the conviction is directly related to the job type. A theft conviction would likely bar a candidate from getting a job handling sensitive financial transactions.)
The “Ban-the-box” initiative has made questions about a candidate possible conviction record even trickier. (Ban-the-box is a legislative movement aimed at giving candidates with a criminal record a more even playing field when competing for jobs.)
A better way: Ban-the-box laws vary from state-to-state and even city-to-city. But it’s common for them to prevent hiring managers from asking about a candidate’s criminal record until after a conditional offer of employment has been made.
6. “How often are you deployed?”
Don’t ask any questions or make any comments about deployment. It’s illegal to discriminate against veterans who serve or who once served in the Reserves, National Guard, or other uniformed services.
Also, don’t ask about the type of military discharge a veteran received. The only relevance this could have to job is if the position requires a security clearance (such as a federal contractor position).
A better way: When interviewing a veteran, ask about his or her leadership skills, project (or mission) management, and experience in team building.
Job seekers who feel they have been discriminated against can find resources at the Equal Employment Opportunity Commission.
Employers should consult a legal professional for information on best-practices for interviewing candidates.
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