Can I Sue for Illegal Interview Questions?
By Steven J. Ellison, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last reviewed August 31, 2022
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Yes, you may be able to sue for illegal job interview questions if you are denied a job. State and federal laws prohibit discriminating against job candidates because of race, sex (including sexual orientation and gender identity), religion, age, pregnancy, marital status, and disability. If you are asked questions about these categories during the interview and don't get the job, you may be able to show that you were illegally discriminated against in the hiring process.
Proving discrimination for a job applicant can be challenging. Employers can argue that there were legitimate reasons why you didn't get the job. If you find yourself in this position, you may want to get in touch with an experienced employment attorney who can give you legal advice and help you better understand your rights.
The Joy(?) of Job Interviews
Job interviews are daunting even for the most qualified of candidates. If all goes well, you may end up with a great new career. You can prepare for the interview as best you can, but still be surprised at some of the personal questions you are asked. That may be because the questions are illegal.
Examples of illegal questions include:
- What country are you from?
- What religion are you?
- What race are you?
- What is your gender?
- Are you married?
- What is your family status?
These are pretty obviously inappropriate. But sometimes the line is fuzzy. For example:
- Where are you from?
- Are you currently unemployed?
- Are you a U.S. citizen?
- How is your health?
- How much do you spend on childcare?
Questions like these may reveal a discriminatory motive.
Federal Anti-Discrimination Laws
Many forms of discrimination are illegal under federal law, state laws, and local laws. Because state and local laws vary, we will focus here on federal law. Federal employment law creates separate categories based on specific characteristics (known as “protected categories" or, more commonly, “protected classes"). These laws include:
- Title VII of the Civil Rights Act of 1964
- Americans with Disabilities Act (ADA)
- Age Discrimination in Employment Act (ADEA)
- Pregnancy Discrimination Act of 1978
- Genetic Information Nondiscrimination Act of 2008
A potential employer cannot discriminate against individuals based on characteristics that fall within the following protected classes:
- Race or ethnicity
- Sex (including sexual orientation and gender identity)
- National origin
- Disability (you are entitled to a reasonable accommodation)
- Age (over 40)
- Marital status
- Genetic information
You cannot be denied a job because of your membership in any of these protected categories. An interviewer who asks questions about them is treading on thin legal ice and opening the employer up to a discrimination claim.
What Should You Do if You Are Asked Inappropriate Questions?
Say you are a job applicant for a barista position at a local coffee shop. You have worked at Starbucks since high school, and even won three barista competitions. You take great pride in the maple leaf you can create in the foam of a latte. You clear the background check with flying colors. You have great references. You're good to go.
The job interview seems to be going great, until the hiring manager starts asking you questions about whether you are in a long-term relationship. In fact, you and your spouse are planning on having a baby in the near future.
You are concerned that if you answer the question truthfully, you might not get the job. And you really need that job. What should you do?
- You could answer the question truthfully and hope for the best
- You could refuse to answer the question and not give a reason
- You could refuse to answer the question and suggest to the interviewer that the question is illegal
You roll the dice and answer honestly. You get through the rest of the interview just fine, and then wait by the phone for what you are sure will be a job offer. A few days later, some store lackey calls you, mispronounces your name, and tells you that you didn't get the job.
You are livid. You still believe that honesty is the best policy, but you are sure you would have gotten the job if you had lied. Time to look at filing a discrimination claim.
Filing a Discrimination Claim
The first step isn't to file a lawsuit, however. You have to start with the U.S. Equal Employment Opportunity Commission (EEOC). You can follow the EEOC's process on its website.
Usually this involves first going to your local EEOC office. Bring all documents with you that might relate to your claim. If it's based on interview questions alone, you might not have anything, but you could bring a written list of the illegal questions you were asked. An EEOC employee will meet with you and help you determine whether you want to file a formal complaint (called a “charge") of discrimination.
Be aware that if you do decide to file a charge, you must do so within 180 days of the time of the alleged discrimination. If the charge is also covered by state or local laws, this deadline is extended to 300 days.
Once you file a charge, the EEOC will contact the business (typically within 10 days) and then investigate what happened. Depending on the results of its investigation, the EEOC could decide to bring a civil rights action against the business or try to work out a settlement on your behalf.
If the EEOC decides not to file its own lawsuit and can't reach a settlement, it will then send you a notice of your right to sue. Once you have that, you can file a lawsuit in state or federal court. For this you'll want a lawyer.
File Your Discrimination Lawsuit
You and your lawyer will prepare and file your complaint with the court. A complaint:
- Identifies the parties
- Shows that the court has the power to decide the dispute (that it has “jurisdiction")
- Sets out your legal claims against the business
- States the facts about what happened
- Asks the court for relief (more on that below)
Your lawyer will have a process server serve the complaint on the business.
The business will prepare and file a response to your complaint, which is called an answer. They will either admit or deny your allegations and raise any defenses they might have against your claims.
Then the real action begins.
Proving Illegal Discrimination
Proving discrimination is demanding. You need evidence to show that the employer did not hire you because you were a member of a protected class. You can prove this discriminatory motive through direct or circumstantial evidence.
Direct evidence of discrimination is evidence that, if believed, proves a discriminatory intent without the jury needing to infer or presume anything. An example would be a document that said something along the lines of, “We didn't hire her because she's planning on having a baby soon." Or workers might tell you that the hiring manager told them that you weren't hired because you were planning on having a baby, and they needed someone who wouldn't be gone on maternity leave.
However, most employers aren't stupid enough (although you would be surprised) to flat out admit that you weren't hired because of your membership in a protected class. So you need to rely on circumstantial evidence. Circumstantial evidence requires you to make an inference or presumption. For example, if the interview goes great, but the employer hires a man for the barista position who is less qualified than you, you may be able to infer that you weren't hired because of your marital status or pregnancy. Circumstantial evidence can be just as persuasive as direct evidence.
Burdens of Proof
You need evidence to meet your burden of proof in court. Meeting the burden of proof in a hiring discrimination case just means you are responsible for producing enough evidence to persuade a judge and a jury that the existence of discrimination is more likely than not. In a hiring discrimination case, the burden starts with you.
You first must establish a plausible claim (lawyers call this a “prima facie case") of employment discrimination by showing:
- You are a member of a protected class
- You met all of the employer's legitimate job requirements
- You weren't hired
- Another individual who is not a member of your protected class was hired
If you can show this, the burden then shifts to the potential employer. They have to present a legitimate, nondiscriminatory reason for the hiring manager's hiring decision. The one you may hear is that the other employee “seemed to be a better fit" without further details.
If the employer manages to do this, the burden shifts back to you to show that the employer's reason is really just a pretext for discrimination. This can be a challenge, particularly if the reason the employer offers isn't specific. But lawyers do it all the time.
What Can You Get?
If you win your case, the court can award you relief. In a hiring discrimination case, the goal is to put you in the position you would be in if the discrimination had not occurred. The types of relief will depend on the nature of the discrimination and its effect on you.
In our hiring discrimination case, the court may order the business to give you the barista job and award you compensatory damages. Compensatory damages are monies that are intended to compensate you for any losses you may have sustained. That might include out-of-pocket expenses, back pay, and compensation for benefits you might have received had you not been discriminated against.
In a rare case, you may be able to recover punitive damages. Punitive damages are not intended to compensate you for a loss. Instead, they are meant to punish a wrongdoer for extreme and outrageous behavior. If the jury found that the business acted maliciously, they might award you punitive damages. Based on the size of the business you are suing, there may be limits on compensatory and punitive damages you can recover.
You may also be able to recover all court costs, expert witness fees, and reasonable attorneys' fees.
If You Are Asked Illegal Job Interview Questions and Don't Get Hired, Consider Consulting a Lawyer
We hope your job interview process goes smoothly and that you get the dream job you've been looking for. But if you find yourself being asked questions that make you uncomfortable, trust your gut. Questions relating to your membership in a protected class are inappropriate at best and may reveal a discriminatory intent on the part of your potential employer.
You shouldn't take employment discrimination lightly. At the very least, you may wish to contact an experienced employment lawyer in your area who can discuss with you what your legal rights are in the context of an attorney-client relationship and help you get the relief you are legally entitled to.
Good luck with your job search!
Contact a qualified employment attorney to make sure your rights are protected.