An often-overlooked problem in hiring new employees is asking illegal questions on job applications and in job interviews. The law is clear: asking illegal questions on an application or in an interview can get you in trouble and possibly land you in court. Employers, whether small local businesses or large corporations are required to adhere to certain federal and state laws. Not adhering to these laws could result in legal action and even criminal charges.
When we interview a job applicant, many of us start with small talk. It’s an effort to help the applicant get comfortable and set the tone for the interview. One of my favorite, and light-hearted, initial interview questions is: Dunkin Donuts or Krispy Kreme? There is no wrong answer, but it does help get things started in a more comfortable tone!
While this light icebreaker question does not even go near the line of crossing over into illegal questions, many icebreaker questions can do just that. Questions such as: Are you married? Are you divorced? Do you have children? How old are your children? Where do you go to church?
These questions seem innocent enough as small talk goes, but they cross the line by asking for information that could be used to discriminate based on sex, age, or religion. Let’s discuss in more detail the types of questions we cannot ask on a job application or in an interview and the reasons and consider some alternate, acceptable questions. There are several areas of questions you must be careful of when drafting a job application or interviewing applicants. All the areas are governed by laws that protect job applicants and employees against discrimination.
Age Questions. It is illegal to ask: How old are you? What year were you born? When did you graduate from high school? It is appropriate to ask: Are you over the minimum age for the hours or working conditions? If the applicant is obviously over the minimum age to work, then there aren’t any appropriate questions to ask related to age.
Disability Questions. It is illegal to ask: Do you have any disabilities: What is your medical history? How does your condition affect your abilities? An appropriate question to ask: Can you perform the specific tasks and duties of the job?
COVID-19 Vaccination Status. Asking questions about an applicant’s vaccination status prior to hiring could be problematic. It might be used against you if that candidate is not hired for the position. Allegations of discrimination on a protected basis could arise from this line of questions. If vaccination is important to your business, you should have a written policy that applies equally to current employees and prospective employees. The policy should articulate how the requirement is job-related and a business necessity.
You may require vaccination after making the offer and before the new employee starts work. As long as you provide accommodations for employees requesting an exemption for disability or religious-related reasons. This requirement should be included in your job posting so that prospective employees are aware of the requirement prior to applying.
Criminal Record Questions. It is illegal to ask: Have you ever been arrested? Have you ever spent a night in jail? Note: There are exceptions if the applicant is being considered for a security-sensitive job and the employer can prove the conviction or history is related to the position.
Parental Status Questions. It is illegal to ask: How many children do you have? Do you plan to have children? How old are your children? Are you pregnant? Do you plan to become pregnant? What kind of childcare arrangements have you made? Appropriate questions to ask: Is there any reason you can’t start at 7:30 a.m.? Can you work overtime? Questions about whether the applicant can meet specific work schedules or has activities or commitments that may prevent him or her from meeting attendance requirements are acceptable.
Gender-Related Questions. It is illegal to ask: What is your gender? Are you married? Are you divorced? Are you separated? Are you engaged? Are you widowed? Is this your maiden or married name? What is the name of your relative/spouse/children? Do you live with your parents? Questions concerning a spouse, or spouse’s employment, salary, living arrangements, or dependents are not okay. How will your spouse feel about the amount of time you will be traveling if you get this job? Note: It is illegal to require an applicant to provide a picture with their application.
Citizenship Questions. It is illegal to ask: Are you a U.S. citizen? Are your parents U.S. citizens? Is your spouse a U.S. citizen? On what date did you acquire U.S. citizenship? On what date did your parents acquire U.S. citizenship? On what date did your spouse acquire U.S. citizenship? Are you a naturalized or native-born U.S. citizen? Are your parents naturalized or native-born U.S. citizens? Is your spouse a naturalized or native-born U.S. citizen? Appropriate questions to ask: Do you have the legal right to remain permanently in the U.S.? What is your visa status (if they answer no to the previous questions)? Are you able to provide proof of employment eligibility upon hire?
National Origin Questions. It is illegal to ask: What is your nationality? Where were you born? Where are your parents from? What is your heritage? How did you acquire the ability to speak, read, or write a foreign language? What language is spoken in your home? Appropriate questions to ask: What language do you speak, read, or write fluently? It is also appropriate to verify legal U.S. residence or work visa status.
Race or Skin Color Questions. It is illegal to ask: What race are you? Are you a member of a minority group? Note: As mentioned previously, it is illegal to require an applicant to provide a picture with their application. Appropriate questions to ask: None.
Religion or Creed Questions. It is illegal to ask: What is your religious affiliation? Do you attend church regularly? What church do you attend? Which religious holidays will you be taking off from work? An appropriate question to ask: Can you work on Saturdays or Sundays?
Residence Questions. It is illegal to ask: Do you own or rent your home? Do you live in town? Who do you live with? Appropriate questions to ask: Inquire about the best address to facilitate contact with the applicant. Will you be able to start work at 8:00 a.m.?
Education Questions. It is illegal to ask questions about an applicant’s educational background if the job does not require a particular level of education. For example, asking about the English language proficiency and educational background of a secretarial applicant is proper, while the same questions would not be proper for a janitorial applicant.
Credit History and Garnishment Questions. It is illegal to ask: Have you ever had your wages garnished? Have you ever filed for bankruptcy? How is your credit rating? Do you own your own home?
Military Service Questions. It is illegal to ask: What type of discharge did you receive? Do you receive VA disability compensation? Do you have any health conditions from your military service? Appropriate questions to ask: What type of training did you receive? What was your Military Occupational Specialty (MOS)? Did you receive any specialized training? Where did you serve?
Before the interview, you should determine the questions you are going to ask the applicants. Make a written list of the questions and ask the same questions to all the applicants. Do not stray from the predetermined list of questions. You should bring the application and any other application documents, such as a resumé, to the interview. Review the application to confirm the information is correct and hasn’t changed. Only the applicant should write on the application and any changes should be initialed by you and the applicant. Don’t write notes or thoughts on the application itself. Keep your notes about the interview on a separate piece of paper.
If an applicant brings up any of the off-limits topics, gently move the discussion back to your list of questions. In your interview notes, comment on the applicant mentioning the off-limit topic and your response.
After hiring, there are questions you can ask that were not permitted during the interview process. When completing insurance forms, they may require proof of age and you can verify that information with a birth certificate or other identification. They may also require information about a new employee’s medical history, dependent information, and marital status. Dependent information and marital status may also be required for tax forms. In this context, it is not illegal.
Always check with your lawyer for the latest restrictions imposed by your state. Please note, as always, these are just guidelines. Some questions may be acceptable depending on your situation.
If you are wondering what my answer to that hard-hitting interview question mentioned at the beginning of the post is; it used to be Dunkin Donuts until they stopped making the Toasted Coconut donut. Now I can’t pass up a Krispy Kreme when the “Hot Now” sign is on!