LEGAL GUIDE
Written by Avvo Staff | Oct 26, 2015

Top 6 illegal job interview questions

Job interviews can be excellent opportunities to put your best foot forward and show an employer why they should hire you. Interviews can be difficult enough, but sometimes interviewers go beyond what they are allowed to legally ask, and you could get the sense that the employer is unfairly discriminating against you in the interview. This article will help you to determine when interview questions cross over the line and violate employment law.

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What kinds of interview questions are illegal?

For the most part, an employer can make hiring decisions based on any sort of hunch or reason. However, the law does not let employers reject applicants for a job if the employer’s reason is illegally discriminatory.

The laws vary from state to state on what counts as “discriminatory,” but generally an employer cannot reject an applicant because of the applicant’s race, age, sex, marital status, national origin, religion, sexual orientation, or disability. Your state may also include other categories, such as HIV status.

Because the employer is not allowed to consider those topics when they make their hiring decision, they also may not ask questions about these things during the interview.

Illegal interview questions

1. “Do you have kids/Do you plan to have kids?”

Historically, employers have used ideas about parenting roles to deny women equal employment opportunities. Because of this, the law makes it illegal for an employer to ask questions about a woman’s motherhood or any plans to have children. In some states it is legal for employers to ask men these questions (due to the lack of historical discrimination), but other states forbid these questions across the board.

2. “Where are you from, originally/Are you a citizen?”

An employer can check that applicants are legally allowed to work (by asking if the applicant can provide a SSN or EAD) but an employer cannot consider a person’s race or place of birth in making hiring decisions. An employer may ask about language skills if they relate to the job, but cannot discriminate merely because a person speaks multiple languages.

3. “Do you need religious holidays off?”

An employer may not discriminate on the basis of an applicant’s religion. This can get tricky sometimes, so it is important to see if the employer is referencing religion in their question. For example, “can you work weekends” is a legal interview question, whereas “do you go to church on Sundays” is not.

4. “How old are you?”

The general rule is that employers cannot reject someone just because the person is over 40. Questions about birthdays might be used only for identification purposes, but it could also show that an employer is using age as an illegal basis for their hiring decisions. Note that some states make age-discrimination illegal when the applicant is under 40 as well.

5. “Do you have any disabilities?”

An employer might be interested in whether an applicant can perform certain tasks, but they cannot ask questions about general disabilities. They must base their decision only on actual ability, not on a person’s disabled status. So, “can you lift 50 pounds over your head” might be okay to ask if it was a necessary skill for the job, but “do you have any medical disabilities that affect your strength?” would be illegal.

6. "What is your gender?"

Employers may only ask gender or sexual identity-related questions where a legitimate occupational prerequisite exists. This is generally limited to roles such as a locker-room or restroom attendant, where gender is specifically relevant. This does not include cover physical labor or traditionally-labeled “men’s work” or“women’s work”.

What if I’m asked an illegal interview question?

Unfortunately, it is not uncommon for employers to ask illegal interview questions. If this happens, you could calmly ask the interviewer why they need that information. This can clarify whether they are seeking information they are not allowed to consider.

Remember that the employer cannot refuse to hire you for not answering an illegal question. Sometimes changing the subject allows you to avoid a direct confrontation.

If you are rejected for a job and you think an employer illegally discriminated, you may be able to file a complaint with the Equal Employment Opportunity Commission, or with your state courts. You would need to prove that an employer used discriminatory reasons to make their hiring decision. While situations vary, this can be difficult to prove, and it is recommended that you seek out an employment law attorney to help you.

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