Organizations need to remember that when we interview a potential employee, there are certain questions that are off-limits. The Equal Employment Opportunity Commission (EEOC) has strict rules surrounding interview questions that might lead to discrimination based on someone’s age, color, gender, marital status, national origin, pregnancy, race, religion, sexual orientation, or veteran status.
Some states also ban questions on a candidate’s salary history. A best practice when it comes to salary is to post the pay range for the position and base that on your industry, location, and what YOUR organization can afford to pay and NOT on what the candidate made at their current or previous job.
Many of the questions that you might think to ask to “break the ice” could potentially be illegal. For example, if you ask, “where are you from?” Title VII of the Civil Rights Act makes it illegal to discriminate against someone based on national origin. Although you meant no harm and had no intention of discriminating against someone because they were from another country, that question could lead to a potential claim of discrimination, especially if that person didn’t get a job offer.
The following list contains questions you should not ask and includes an alternative question to assist you in getting at the business reason for asking a certain question.
Illegal Interview Questions and EEO Guidelines:
| Subject | Permitted | Not Permitted | Notes |
|---|---|---|---|
| Address | How long have you been at your current address?
What is your current address? What was your previous address and how long did you live there? |
Do you own your own home, or do you rent?
Who do you live with? How are you related to the people you live with? |
|
| Age | For some roles age is a legal requirement (working in a bar) it is acceptable to ask a candidate their age directly and ask for proof. | What year were you born?
When did you graduate high school? |
Age discrimination only pertains to adults over the age of 40.
Exemption for employers with less than 20 full-time employees. |
| Arrest Record | Usually, only law enforcement agencies can ask and exclude based on their arrest record.
For other businesses, it is OK to ask if the arrest is directly related to the role they applied for and relatively recent, but you are walking a very thin line. |
Avoid any questions relating to arrests if it is not directly related to the job or in states where it is illegal to ask. (i.e., they have not been convicted yet so could be innocent). | See convictions below for arrests that have led to convictions. Also, rejecting applicants based on arrest records has been shown to impact some racial groups. |
| Availability | What days and shifts can you work?
Are there shifts you cannot work? Are there any responsibilities you have that could make it difficult for you to travel for work? Do you have a reliable way of getting to work? |
Directly asking about weekend work could be seen as a proxy question for religious observance.
Also, questions about evening work or childcare arrangements can impact females who have childcare responsibilities. Asking if they own a car could be seen as racially discriminatory unless it is a requirement of the job. |
Ask all candidates the same questions on this subject.
Asking only women about evening work can be discriminatory as it ties into questions about family status. |
| Citizenship or National Origin | Are you legally eligible to work in the United States?
Can you show proof of citizenship/visa/alien registration if we decide to hire you? Are you known by any other names? Can you speak, read, and write English? |
Are you a US citizen?
Can you provide a birth certificate? What country are your parents from? What is your background? Where were you born? How did you learn Portuguese? |
Asking about other languages is fine if it is a job requirement such as a translator or Spanish-speaking phone operator.
Exemption for employers with less than 15 full-time employees. |
| Convictions | If the role the candidate applied for is security-sensitive, then it should be fine to ask questions about convictions.
Candidates dealing with large sums of money (cashier, treasurer, money transfer agent) or aligned roles where the candidate is working unsupervised such as janitor, custodian, or truck driver could all be considered security-sensitive. |
Don’t ask questions about convictions for roles that are not security-sensitive or ask about convictions that have no connection to the role.
For example, asking a receptionist about speeding convictions. |
Rejecting candidates purely on conviction records has been shown to disproportionately impact some racial groups.
If this question is important then it is best to ask it later in the interview process so candidates can be excluded for legal reasons first. |
| Credit Inquiries | In general, do not ask questions about this unless you are sure it is permitted under the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996. | Do you have a bank account?
Do you own a home or rent? Have your wages ever been garnished? Have you ever declared bankruptcy? |
|
| Disabilities | Accurately describe the job then ask the candidate if they can perform all of the functions. | Do you have a disability?
Have you ever filed a worker’s compensation claim? Have you ever suffered a workplace injury? |
Exemption for employers with less than 15 full-time employees. |
| Education | Do you have a high school diploma or equivalent?
What university or college degrees do you have? |
What year did you graduate high school? | |
| Emergency Contact Name | Only after employment is confirmed. | Who is your emergency contact? | Do not ask this as part of any pre-employment interview questions as this could be seen as a question about national origin or sexual orientation. |
| Employment | How long did you stay in your last role?
What were the start and finish titles? What are your salary expectations? |
When did you first start working? (age discrimination) | Some states prohibit questions about current salary. |
| Family Status | Do you have any commitments that might prevent you from working the assigned shifts? | Are you married?
Are you single? Do you have any children? |
Ask all candidates about outside commitments, not just relationships, or it will be seen as discriminatory. |
| Financial Status | Do you own a car? (only if a requirement of the job) | Do you own your own home?
Do you own a car? |
Due to the relationship between poverty and some minorities, questions on this subject can be very sensitive. |
| Genetic Information | None | Do you or any of your family members have a history of disorders or diseases? | Exemption for employers with less than 15 full-time employees. |
| Height or Weight | Accurately describe the job then ask the candidate if they can perform all the functions. | What is your height?
How much do you weigh? |
If you can definitively prove a specific height and/or weight is required for the job, then it is fine to ask, but this is usually unlikely. |
| Marital Status | None | Are you married?
Are you single? Do you have any children? |
|
| Military Service | What experience and training did you receive while serving that would be beneficial to this job? | Direct questions about discharge or non-U.S. military service. | |
| Organizations | Are you a member of a professional organization? | Are you a member of the local country club?
What sorority did you join? |
Avoid all questions about non-professional organizations that could be seen as a proxy questions about race, age, sex, etc. |
| Personal Information | Have you ever worked for us before under any other name?
What are the names of your personal references? |
Did you ever change your name through marriage or court applications?
What is your maiden name? |
|
| Pregnancy | How long do you plan on staying with us?
Do you have any leave planned? |
Are you pregnant?
Are you trying to have a family? |
Even if a candidate is obviously pregnant, it is not acceptable to ask any questions about this subject.
You can still describe the job and then ask if they can perform all functions. Exemption for employers with less than 15 full-time employees. |
| Race or Color | Almost always not acceptable unless it is a bona fide occupational qualification. | All questions about color and race. | If you have a question about race and are unsure about it, it’s best to get legal advice.
Exemption for employers with less than 15 full-time employees. |
| Relatives | Do any of your relatives currently work for us or our competitors?
Can you provide the names of your relatives who work for us? |
What is the name of your relatives who work for our competitors? | This does become discriminatory if your company has issues hiring minorities as it could look like you have a preference against hiring them. |
| Religion or Creed | None | What denomination are you?
Who is your pastor? |
Exemption for employers with less than 15 full-time employees. |
| Sex, Orientation, or Gender Identity | None | What gender do you identify as? | Avoid all questions relating to gender and sexual orientation.
Exemption for employers with less than 15 full-time employees. |
Following these guidelines will help your organization to avoid any pre-employment discrimination claims.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
