As a small business owner, it’s important to understand which job interview questions are illegal. Laws at the federal and state level exist to protect people from being discriminated against during the hiring process. As an employer, you need to carefully formulate the questions you ask during a job interview. In our office, anyone interviewing a potential job candidate must follow a standard set of best practices for interviewing job candidates. Such practices are critical for avoiding a job discrimination lawsuit that could tear down the business success you’ve worked so hard to achieve.
So what types of questions should you steer clear from so your company doesn’t land legal hot water?
Generally, any questions that guide job candidates into revealing information about their race, color, age, religion, national origin, sex, gender identity, sexual orientation, marital status, disability, or genetic information should not enter into your conversation. You also need to be careful about asking for criminal background information.
Several examples of questions you may want to avoid include:
- Do you have a husband (or wife)? While you might want to ask this question to find out whether the candidate will have enough time to dedicate to the job, don’t ask this question. According to the U.S. Equal Employment Opportunity Commission, questions about marital status are frequently used to discriminate against women and illegally deny or limit employment opportunities. This type of question might also be construed as trying to get an individual to disclose gender or sexual orientation.
- How many children do you have? By law, you cannot deny someone a job because they have children, are pregnant, or plan to have children sometime in the future. If the impetus to ask this or a similar question is to figure out how much time a candidate can devote to the job, then consider asking something like, “What hours would you be available to work?”
- When did you graduate from college? Because this could enable you to figure out a job candidate’s age, you need to nix this question. The Age Discrimination in Employment Act (ADEA) protects prospective employees from being turned down because of their age.
- What was the nature of your discharge from the military? The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects people from job discrimination based on their past, present, or future military obligations. You can ask a candidate about the skills and training they received during their military service but not why they were discharged.
- Are there any religious holidays you honor? Title VII of the Civil Rights Act of 1964 prevents employers from denying employment based on an individual’s religious affiliation. Don’t set your business up for trouble by asking this type of question, even if your intention is simply to get a sense for how much time off a job candidate might expect.
- Have you been arrested at any time in the past? Federal law doesn’t prevent you from asking about a candidate’s criminal history, but using that information when making a hiring decision might violate Title VII. And some states have made it illegal to ask about arrest records or to wait until later in the hiring process to inquire about them. Generally, you can’t disqualify a candidate because of a conviction record, unless the offense directly relates to the nature of the job. For example, someone with a child molestation conviction could be denied an elementary school teaching position.
- Do you drink socially? Although you might be asking in a friendly way to break the ice, this question could be trouble for you. The Americans With Disabilities Act (ADA) of 1990 protects qualified individuals who have had problems with alcohol abuse.
- When did you last use any illegal drugs? This is a tricky one. Although asking job candidates if they presently use illegal drugs (current users are not protected by the ADA), you may not ask about past drug use.
- What is your first language? Avoid this and similar questions that could be interpreted as a way to determine where someone is from or what their nationality is.
Realize this list of examples isn’t exhaustive and it isn’t meant as a substitute for legal guidance. But I do hope it will give you a better idea about the types of questions you should avoid when interviewing potential employees. Typically, you can play it safe by focusing your interview questions on asking about your candidates’ skills, behaviors, and work experience as they relate to their ability to perform the job position you’re filling. Also, do your homework so you understand the laws that pertain to you at the federal level and within your state. I also recommend that you consider seeking direction from a human resources professional and/or an attorney. They can assist you in developing or reviewing your interview questions so you don’t unknowingly break the law and put your business at risk.