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6 Illegal Interview Questions & What to Ask Instead

03 Aug 2015 by

Fair hiring laws were enacted 40 years ago to protect workers in the United States from unfair discrimination that could prevent them for being hired on any basis other than an inability to perform essential job functions. However, even after four decades, many employers ask illegal interview questions out of ignorance or inexperience.

Today we’re sharing six common illegal interview questions that you cannot ask candidates, according to US law. Since many employers inadvertently ask these questions with no intention of insulting or discriminating against candidates, we’ve attempted to get to the root of the intention and offer an alternative question that addresses the same concern in a respectful–and legal–way.

Are You a U.S. Citizen?

Although this seem like a great question to determine whether an interviewee is legally able to work for your company, it’s actually an illegal question to ask. Changing the wording slightly will help you make this determination without breaking any fair hiring laws or putting yourself in a position to discriminate against non-citizens.

What to ask instead: If hired, can you provide proof that you’re authorized to work in the U.S.?

How Old Are You?

This question is usually asked for one of two reasons: either you’re worried that the candidate is too young to meet the minimum age requirement for the position, or you are concerned that an older worker might be too close to retirement to be invested in long term goals. Age should not be a factor when determining a candidate’s ability to perform the essential job functions. If you need to address you other concerns, try asking about them like this:

What to ask instead: If hired, can you provide proof that you’re at least 18 years of age?

What to ask instead: What are your long term career goals?

Do You Have Children?

This is a tricky question because it’s a common thing that you might ask people when you meet them at cocktail parties and networking events. But when it comes to the interview process, questions about children, spouses, and families are inappropriate and illegal. Fair hiring laws ban these types of questions to protect candidates from employers who make assumptions about the effect that children or a spouse might have on that person’s ability to perform their job.

If the position requires frequent travel, late hours, or other flexibility and you’re concerned about a candidate’s ability to meet those requirements, pose the question to address those concerns specifically. If you’re hoping to avoid hiring someone who might take immediate maternity leave, know that that’s not something you can, or should, ask about. Rather, focus you questions on the candidate’s long term goals.

What to ask instead: Are you available to travel or work overtime on occasion with short notice? Does this present a problem for you?

What to ask instead: What are your long term career goals?

Have You Ever Been Arrested?

It is legal to ask a candidate whether they have been convicted of a specific crime, such as fraud or theft, as it relates to the position at hand. It is not legal to ask if they’ve been arrested. Cases may have been dismissed without a conviction or the charges may have been lowered to lesser charges. Be sure that the questions ask about relevant convictions to the job.

What to ask instead: Have you ever been convicted of x? (specific crime such as fraud or theft)

Do You Have Any Disabilities?

It is perfectly permitted to ask any candidate how they would perform a job-related function, about prior attendance records, and even to undergo a medical exam or physical after an offer of employment has been made. You do need to insure that all of your questions address job-related capabilities and that you never make assumptions about a candidate’s ability or disability. Therefore, any questions about how someone became disabled or how long someone has been disabled are also off limits.

What to ask instead: This job will require you to be out of the office meeting with clients several days per week. Can you tell me how you would get around?

What to ask instead: If hired, would you be able to perform all the essential job functions outlined in the job description, with or without reasonable accommodation?

Are you a member of the National Guard or Reserves?

Employers cannot make hiring decisions based on a service member’s membership or active duty service in the military, or discriminate based on their assumptions about upcoming military leave. Therefore, employers are not able to ask questions about the effect of the employer’s military service on his or her ability to work for the employer.

What to ask instead: Do you have any upcoming events that would require excessive time away from work?

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