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22 December, 2015

Beware Hiring Managers! Legal Risk Ahead

illegal interview questions

A single wrong question during a job interview can land you in legal trouble.

While conducting a job interview, it is very important to ask many questions to know the interviewee’s suitability for the job. But at the same time, it is necessary to be cautious while framing questions, as any wrong illegal interview questions can spark up a legal case of discrimination against you.

Sometimes even casually asked questions that may seem like a simple chit-chat, may lead you to dangerous territory in the eyes of the law.

Interviewing should not be taken lightly nor conducted without adequate training on the do’s and don’ts of interviewing – or you could legally compromise yourself and create undue legal risk for your company.

Here is a comprehensive list of illegal interview questions Hiring Managers must NOT ask to avoid any kind of legal repercussions (Based on EEOC guidelines). The questions are categorized so that you can easily refer to the below list, whenever you need it.

Note: The questions are based on the EEOC(Equal Employment Opportunity Commission)guidelines, called the Fair Inquiry Guidelines, established in order to provide specific protection from discrimination in hiring certain protected classes.

1. Marital Status

Illegal Questions: Whether the applicant is married, divorced, separated, engaged, widowed, etc.

  • What is your marital status?
  • What is the name of relative/spouse/children?
  • With whom do you reside?
  • Do you live with your parents?
  • How old are your children?

Legal Questions:

  • What are the names of relatives already employed by the company or a competitor?
  • Other than that specific question, NONE.

  2. Residence

 Illegal Questions: Any inquiry related to Names or relationship of persons with whom applicant resides. Eg.

  • Do you own or rent a home?
  • Do you live in town?
  • How far is your commute?
  • Do you live nearby?

Fair Questions: Inquiries about the address to the extent needed to facilitate contacting the applicant. (A post office box is a valid address.). Eg.

  • Will you have problems getting to work at 9 am?

   3. Pregnancy

Illegal Questions: All questions relating to pregnancy and medical history concerning pregnancy. Eg.

  • Do you have any children?
  • Do you plan on having more children?

Fair Questions: Inquiries to a duration of stay on a job or anticipated absences which are made to males and females alike.

  • Do you foresee any long-term absences in the future?

 4. Physical Health

Illegal Questions: Over general questions which would tend to divulge handicaps or health conditions which do not relate reasonably to fitness to perform the job. e. g.

  • Do you have any handicaps?
  • What caused your handicap?
  • What is the prognosis of your handicap?
  • Have you ever had any serious illness?
  • Have you had any recent or past illnesses or operations?

Fair Questions: Here you can only ask questions that relate to the job. For eg.

  • Can you lift 40 lbs?
  • Do you need any special accommodations to perform the job you've applied for?
  • How many days did you miss from work (or school) in the past year?

5. Family

Illegal Questions: Questions concerning spouse, or spouse's employment, salary, child care, arrangements, or dependents such as:

  • How will your husband feel about the amount of time you will be traveling if you get this job?
  • What kind of childcare arrangements have you made?

Fair Questions: Whether applicant can meet specified work schedules or has activities or commitments that may prevent him or her from meeting attendance requirements.

  • Can you work overtime?
  • Is there any reason why you can't be on the job at 7:30 am?

  6. Name

Illegal Questions: Any inquiries about the name which would divulge marital status, lineage, ancestry, national origin or descent. For example,

  • What is your maiden name?
  • If your name has been legally changed, what was your former name?

Fair Questions: Whether an applicant has worked for the company or a competitor under any other name and if so, what name. The name under which applicant is known to references if different from the present name. i.e.

  • Have you worked under any other professional name or nickname?
  • What name are you known to the references you provided us?

  7. Sex

Illegal Questions: Any inquiry as to sex such as:

  • Do you wish to be addressed as Mr., Mrs., Miss, or Ms.?
  • Do you have the capacity to reproduce?
  • What are your plans to have children in the future?

Fair Questions: None

 8. Photographs

Illegal Questions: Requests that an applicant submits a photo at any time prior to hiring.

Fair Questions: Can be requested after hiring for identification purposes.

  9. Age

Illegal Questions: Any questions that tend to identify applicants age 40 or older.

  • What is your birth date?
  • How old are you?

Fair Questions:

  • Are you 18 years of age?
  • If hired, can you furnish proof of age?

 10. Education 

Illegal Questions: Any question asking specifically the nationality, racial or religious affiliation of a school.

  • What is your race or ethnic origin?
  • What church do you attend?
  • What is your religion?

Fair Questions: All questions related to the academic, vocational or professional education of an applicant, including the names of the schools attended, degrees/diplomas received, dates of graduation and courses of study.

 11. Citizenship

Illegal Questions: Whether an applicant is a citizen. Requiring a birth certificate, naturalization, or baptismal certificate. Any inquiry into citizenship would tend to divulge the applicant's lineage, descent, etc., and would be considered as illegal interview questions. 

  • Are you a citizen of the US?
  • Are your parents or spouse citizens of the US?
  • On what dates did you, your parents or your spouse acquire US Citizenship?
  • Are you, your parents or your spouse naturalized or native-born US citizens?

Fair Questions: Whether the applicant is prevented from lawfully employed in this country because of visa or immigration requirements. Whether applicant can provide proof of citizenship (passport), visa, alien registration number after hiring. Example includes:

  • If you are not a US citizen, do you have the legal right to remain permanently in the US?
  • What is your visa status?
  • Are you able to provide proof of employment eligibility upon hire?

   12. National Origin/Ancestry

Illegal Questions: Anything related to National origin or ancestry.

  • What is your nationality?
  • How did you acquire the ability to speak, read or write a foreign language?
  • How did you acquire familiarity with a foreign country?
  • What language is spoken in your home?
  • What is your mother tongue?
  • Where were you/your parents born?

Fair Questions:

  • What languages do you speak, read or write fluently?

Note: This is only legal when the inquiry is based on a job requirement.

 13.  Race or Color

Illegal Questions: Any question that directly OR INDIRECTLY relates to a race or color. E. g. :

  • What is your race or ethnic origin?

Fair Questions: None

 14.  Religion

Illegal Questions: Any question that directly or INDIRECTLY relates to a religion. Eg.

  • What is your religion?
  • What religious holidays to you observe?
  • What is your religious affiliation?
  • What church do you attend?

Fair Questions:

  • Can you work on Saturdays?
  • Do you have any responsibilities that conflict wit the job’s attendance or travel requirements?

Note: Only if it is relevant to the job.

 15.  Organizations

Illegal Questions:

  • To what organizations, clubs, societies and lodges do you belong?

Fair Questions:  These inquiries must only relate to the applicant's professional qualifications.

  • To what PROFESSIONAL organizations do you belong?

Note: Exclude those where names or character indicates the race, religious creed, color, national origin or ancestry of its members.

16.  Military

Illegal Questions:

  • Type or condition of military discharge.
  • Applicant's experience in other than US armed forces.
  • Request for discharge papers.

Fair Questions: Inquiries concerning education, training or work experience in the armed forces of the United States.

Note: in many areas, veterans are a protected class.

 17.  Height & Weight

Illegal Questions: Any inquiries not based on actual job requirements.

Fair Questions: Inquiries about the ability to perform a certain job. Being of a certain weight or height will not be considered a job requirement unless the employer can show that no employee with the ineligible H & W could do the work.

 18.  Arrests & Convictions

Illegal Questions: All inquiries relating to arrests.

  • Have you ever been arrested?

Note: Arrests are NOT the same as convictions. An innocent person can be arrested, remember!

Fair Questions: None relating to arrests. It is permissible to inquire about convictions for acts of dishonesty or breach of trust. These relate to fitness to perform the particular job being applied for, as stipulated by FDIC requirements. Legal inquiries about convictions are:

  • Have you ever been convicted of any crime?
  • If so, when, where and disposition of case?
  • Have you ever been convicted under criminal law within the past five years (excluding minor traffic violations)?

The above questions are based on the EEOC guidelines, established as fair inquiry guidelines in order to provide specific protection from discrimination in hiring certain protected classes.

As an interviewer, you must carefully avoid asking any direct or indirect question that are related to an applicant’s race, color, religion, age, gender, national origin, military status, sexual orientation, disability.

So, if you are going to interview a candidate anytime soon, be sure to protect yourself from legal problems by steering clear of these sensitive issues.

These are examples of the illegal interview questions to consider while planning out to recruit and interview new employees. Unintentionally, during a simple chit-chat, you can land up asking these types of questions. So be careful.

If you're concerned about remote hiring. Take a look at How to Ace Your Remote Hiring Process.

Thus, devise your own list of the best interview questions to ask as you participate in more interviews. Don't forget to share your experience.



Rachana Mishra
Rachana Mishra
Growth Officer at iMocha

Topics: Tech Recruitment, Remote Hiring

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