There have always been certain interview questions you should never ask candidates. But with recent changes in state law, you’ll want to be aware that there are even more interview questions to avoid asking! While we don’t claim to be legal professionals–you should consult your own legal counsel for the official scoop–we wanted to share a few helpful tips from the California Department of Fair Employment and Housing with our employers. But first, you’re probably wondering…
Why can’t I just ask what I want to know?
The law prohibits the use of all pre-employment inquiries that disproportionately screen out job seekers based on protected status when the questions are not justified by some business purpose. Although none of us likes to be told we can’t do something, the intent of the law is to prevent discrimination.
Navigating the dos and don’ts of interview questions can be like walking through a minefield. Although you undoubtedly know not to ask about a person’s race or religion, you may be surprised at some of the questions the EEOC says you’re not allowed to ask! In many cases, it’s not as simple as avoiding a certain question–it’s about what’s behind the question’s intent, and what a question could lead to.
The important thing to keep in mind is this: The information you obtain and request through the pre-employment process should be aimed solely at determining qualifications without regard to such irrelevant criteria as race, sex, sexual orientation, gender identity, national origin, age, and religion.
Top five interview questions you should never ask
What gender are you? What is your sexual orientation? If sex is a bona fide occupational qualification demonstrably related to job performance, you may ask the applicant’s sex. But never ask an applicant’s gender. Any question related to a candidate’s sex, gender, or sexual orientation is problematic. Also off limits are questions related to marital status, spouse, number, ages, or names of children, pregnancy, child bearing, child care plans, or whether the spouse will allow the candidate to travel.
In what country were you born? What language did you grow up speaking? Any question that could reveal a person’s national origin is off-limits, including asking in what country the person attended school. However, you may ask whether someone is a U.S. citizen or an alien authorized to work in the U.S. You may also ask, If you are hired, can you verify eligibility to work in the United States? If so, will you now or in the future require sponsorship for employment visa status?
How old are you? When did you graduate? Among the interview questions you should never ask are those related to age. Whether you mean to or not, asking a question about when someone attended school or anything that could indicate a person’s age could be construed as age discrimination. Never say in your job posting that you’re looking for a “college age” person or a “digital native.” Of particular concern is discrimination against people over the age of 40, so avoid questions about retirement or health concerns. However, where child labor laws affect certain jobs, you may ask if the applicant is over 18 years of age. And after you’ve hired the team member, you may ask his or her age when obtaining information for insurance, pension, and so forth.
Have you ever been convicted of a crime? Will you be able to pass a background check? California and other states have expanded their limitations on what information you may verbally collect about a person’s conviction history before a conditional offer of employment has been made. Neither may you include on a job application any question that seeks the disclosure of such information. You are free to let candidates know that the position requires them to undergo a background check, post-offer. However, do not follow up by asking, “Is there anything you need to tell us?” But what happens if you make a job offer and then an applicant’s background check shows that he or she has committed a crime? You still can’t legally reject the candidate unless you can connect the crime to the job. For instance, if you have a desk job open, and an applicant has a DUI, you can’t refuse to hire the person solely based on the DUI. But if you’re offering an accounting position and a job seeker’s criminal history shows an embezzlement charge, you have legal grounds to reject the applicant as long as you follow the process prescribed by the EEOC.
How much did you make in your last position? What was your previous benefits package? What was your total compensation? In many states, new legislation has been passed that prohibits asking about prior salary information. (In California, the law is AB168.) If it’s illegal in your state, you should tell potential hires, “In the state of ___, it is now unlawful to ask about the salary history of an applicant. Due to this new legislation I will not be asking you about any previous compensation, which would include previous benefits information as well.” If the candidate, knowing this, still chooses to volunteer this information, you’re okay to hear it. If nothing is disclosed, you may ask, “What do you expect or hope to make in your next position?” Tell them the salary range of your position and ask whether they’d still like to move forward with the interview process.
More Interview Questions You Should Never Ask
In truth, it is impossible to list all the interview questions you should never ask candidates! Again, the important thing to remember is to avoid asking anything that would discriminate against anyone of protected status when it is not for a business purpose. But here are a few more questions to avoid when creating your job application or conversing with career seekers:
List all job-related organizations, clubs, or professional societies to which you belong. Actually, it’s okay if you ask them to list them as long as you include this caveat: “You should omit those which would identify your race, color, religion, sex, national origin, age, disability, or sexual orientation.”
Can you work on Sundays? Can your pastor provide you with a reference? One of the types ofquestions you should never ask in an interview is one that tends to elicit information about an applicant’s religious affiliation or activity in church groups. You can avoid discrimination by telling the candidate what the hours, days, or shifts are required by the position and asking if he or she is able to work this schedule.
Are you disabled in any way? Do you have any medical conditions we should know about? Pre-employment, you are allowed to inquire into an applicant’s ability to perform job-related functions. For example, you can describe the various functions of the job and ask, “Can you perform the functions of the job for which you’re applying?”
Why were you discharged from the military? How often do you do reserve duty? You also may not request military service records. However, you may question applicants about their experience in the military if it applies to your position.
Do you own or rent your house? A person’s economic status is protected. If you’re concerned about their distance from where your business is located, it’s better to ask if the applicant is able to relocate and if so, how soon.
As you can see, there are many types of interview questions you should never ask in an interview in order to avoid legal pitfalls. But we’ve also given you lots of good ones that can lead you to the information you need to make a good decision. (For behavioral interview questions tailored to your position, read this too.) Armed with these questions and an understanding of the intent behind anti-discrimination laws, you can hopefully feel prepared for your next interview and actually enjoy getting to know your next candidate.