Inappropriate interview questions create a risk of discrimination claims under various state and federal anti-discrimination laws. (For example, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, as amended by the Americans with Disabilities Amendments Act.) Therefore, when interviewing an applicant for a job, you must avoid questions relating to race, sex, national origin, age, pregnancy, religion and disability, which are irrelevant as to whether he or she is qualified for the job.
Even asking questions that do not appear discriminatory on their face may be considered unlawful when they screen out a disproportionately high percentage of candidates on the basis of protected status and are not justified by any business purpose. For example, asking about whether an applicant owns their own home could be considered racial discrimination.
The best practice is to always make sure the interview question is only aimed at gathering information necessary to determine the applicant’s suitability for the position the applicant is interviewing for. Avoid personal questions and do not inquire into personal details that might reveal protected class information. Only ask job-related questions.
For example, don’t ask about:
- Age or date of birth
- Dates of school attendance
- Previous addresses and whether the applicant owns or rents the current residence
- Which church or other religious organization the applicant attends
- The applicant’s mother and father’s last name(s) or applicant’s maiden name
- Who resides with the applicant
- Whether the applicant is pregnant, adopting or hosting foster children or planning any of those
- How many children the applicant has and ages of the children
- The applicant’s child care or any other caregiver responsibilities
- Where a spouse or parent works or resides
- If the applicant owns or rents their place of residence
- Whether the applicant has ever been arrested
- Whether the applicant ever served in the armed forces of another country
- Unless job related, whether the applicant has ever served in the US military, and if so, whether the applicant was discharged honorably or dishonorably
- What clubs the applicant belongs to
- What foreign languages the applicant can speak, read or write (unless a job requirement)
- The applicant’s nationality or where they were born
- Whether the applicant is a citizen of the US
- Any questions related to family medical history
- Whether the applicant has a disability generally and any questions related to that disability, including whether the disability may affect her ability to perform the job, whether she will have to leave work for treatment, etc.
Instead, consider asking the following to get information that is job-related:
- Do you belong to any professional or trade associations or other organizations you think are relevant to this job?
- Can you, after an offer of employment, provide proof of age?
- Have you ever been convicted of ____? (limit to a crime that is plausibly related to the job in question)
- What hours and days can you work?
- Are you legally eligible for employment in the United States?
- Can you perform the duties of the job you are applying for?