What You Can't Ask a Potential Employee Because It's Illegal to Do So

Whatever your reason, whether it’s a political opinion or you’re interviewing someone for a job, you need to be careful what you ask and don’t ask these days.

So, when you’re searching for the best employees, think about what questions you should and shouldn’t ask during the hiring process since some are considered illegal interview questions and be construed as discriminatory.

For instance, even though some may seem like innocent questions, you cannot ask anything in a way that relates to a candidate’s:

Age
Race
Ethnicity
Color
Sexual orientation or gender identity
Origin Country
Religion
Disability
Marital status
Family status
Pregnancy
Salary history (in certain states).

While all this may sound like a no-brainer, it can be difficult, especially if you get along well with the candidate during the job offer stage.

When meeting new people, it’s normal they may want to talk about themselves. However, doing so could lead to trouble during an interview. Before deciding which interview question to ask your candidates, think carefully about what you want to learn from them. There are several topics like those above that you may believe are harmless but could be illegal. You need to be aware of these in-depth and what you can and cannot say.

Geography

An easy example that might not occur to you as a potential issue is asking: “What is your nationality?” Or, even simpler, “Where are you from?” If you’re interviewing a candidate who has mentioned working abroad, you might be curious enough to ask them where they’ve been. It seems perfectly harmless small talk, but it could be dangerous if used too often.

You cannot ask people about their nationality because Title VII of the Civil Right Act of 1964 prohibits discrimination based on national origins. For example, If you don’t hire someone because they’re black, then you might be accused of discriminating against people who are black.

You can ask whether they are eligible to work here and whether they can show proof of their eligibility. Now companies must verify that new hires are legally able to work in the United States by filling out an I-9 Form.

You cannot be asked whether English is your first language. You can always inquire about whether they’re fluent in any language besides English.

You must not ask whether they rent or own a house, who they share the house with, or how they know them. You can ask how long someone has been living at their current address.

Marriage

Another example of inappropriate interview questions would be asking someone their last name or if they’re married. Employers are not allowed to use these types of questions when hiring people.

You can ask, “Do you have experience working under another company?” Make sure that every question you ask stays the same for everyone. If you’re trying to figure out whether someone has a reputation for something, you probably want to ask them directly rather than asking if they’ve ever been married.

Age

However, some questions don’t necessarily need to be asked. For example, “How old are you?” isn’t one of them.

If you do have an eligibility requirement and would like to ensure that your candidates meet that criteria, ask them if they’re over the required minimum. If you’re hiring someone to serve alcohol, then they must be at least 18 years of age. There are three other states where a driver must be at least 21 years old, and there is one state where a driver must be 17 years old. In other words, you cannot ask about age as it could be age discrimination when interviewing or even if they are already an employee.

Family Planning

Another common concern among employers is whether asking certain about types of personal inquiries may be construed as discriminatory against applicants who don’t fit their ideal candidate profile. For example, asking “Are you married?” “What is your pregnancy stats?” “Can you share your family medical history?” might seem innocuous enough, but it has been used by some companies to screen out unmarried candidates. Either way, it’s illegal.

During an employment screening, you may not inquire about whether someone has children, is pregnant, or about their childcare arrangements. These questions reveal private information that is protected under federal law.

Ask questions that are relevant to their skills and experience instead.

Health

Being pregnant is considered an illness that qualifies someone for disability benefits, so an employer cannot ask about pregnancy. However, other disabilities are also covered by the ADA. For example, you cannot ask, “Have you ever filed a Worker’s comp claim?” or, “Do you have a physical or mental impairment?” or “What is your medical history?”

Some jobs may require lifting or other physical abilities. You must be able to determine whether someone has the skills required for the job by asking them questions about their experience and knowledge. However, you shouldn’t inquire about their health issues.

It is also illegal for an employer to ask an applicant whether he/she has ever been ill or undergone surgery.

You may not inquire about their height or weight or any other aspect of their physical or mental health status either.

You cannot ask whether someone who wants to be hired for a job uses alcohol or illegal substances. For example, if someone has been an alcoholic or drug addict, they may qualify for protection under the Americans with Disabilities Act of 1990. If they don’t drink because of their religion, that may be considered religious discrimination.

An employer may be able to request that an employee be able to meet the essential job requirements even if they need to make some changes to their schedule or working environment.

Salary History

According to the U.S. Census Bureau, women earn 79% of their male counterparts. Women of color earn even less than white women. It’s illegal for employers to discriminate against a job applicant or even a current employee because they’re women. But proving it is hard. Some states have taken small but important first steps to end this kind of discrimination at the job application stage.

All 50 states plus Washington D.C., Guam, American Samoa, Northern Mariana Islands, Virgin Islands, and the District of Columbia have banned certain types of job interviews from asking candidates this. And in New Orleans (Louisiana), New York City (New York), Philadelphia (Pennsylvania), and Pittsburgh (Pennsylvania) each have similar laws on their books now. It’s best to just avoid asking questions like “what is your current salary?”

Instead, set the salary at the beginning of the interview and let them know that this and if they’re interested in the job and if their idea of this salary falls within that salary bracket.

The idea here is that if companies can pay their employees fairly, they won’t be able to justify paying them less than others for the same job.

The Bottom-line Is …

You need to understand your rights as an employer. Illegal requests are not acceptable on job applications, during interviews, and at work. With these tips and suggestions, you will be better prepared when interviewing potential candidates.

What You Can’t Ask a Potential Employee Because It’s Illegal to Do So