Can You Sue for Illegal Interview Questions?

If an employer asks you questions about any of these categories during an interview and it influences their hiring decision, it could indicate that they unfairly discriminated against you.

Proving discrimination as a job candidate can be a complicated process. Prospective employers may justify their hiring decisions with legitimate grounds unrelated to discrimination. For help determining how anti-discrimination laws might apply to your situation, consider reaching out to an employment attorney in your area. 

This article explains what it means for an interview question to be illegal and the potential course of action if you were asked illegal questions during a job interview.

What Does An “Illegal Interview Question" Mean?

Illegal interview questions are questions asked during a hiring process that seek details unrelated to the candidate’s ability to fulfill the duties required by the position. Employers might use these types of questions to discriminate against job applicants. 

Illegal interview questions often focus on one’s characteristics, including age, religion, race, gender, marital status, disability, or national origin.

Federal Anti-Discrimination Laws

Many forms of discrimination are illegal under federal, state, and local laws. Because state and local laws vary, we will focus 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
• Color
• Sex 
• Religion
• National origin
• Disability 
• Age (over 40)
• Pregnancy
• Marital status
• Genetic information

Employers cannot deny you a job because you belong to 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 are Some Examples of Illegal Interview Questions?

Job interviews can be daunting even for the most qualified candidates. Although you can prepare for interviews, you may still face questions that seem personal and unrelated to the job description. Some questions might feel too personal and uncomfortable, which could indicate discriminatory hiring practices. 

Below are a few examples of different types of illegal interview questions.

• Questions related to national origin or citizenship: What country are you from? Are you a U.S. Citizen? Can you show proof of your birth certificate? Where were you born?
• Questions related to age: What year did you graduate high school? What year were you born?
• Questions related to family status: Are you single? Are you married? Do you have any children?
• Questions related to pregnancy: Are you pregnant? Are you trying to conceive or have a family?
• Questions related to religion: What religious denomination are you a part of?

There are a few circumstances where factors like age may be relevant. For example, age can be a legal requirement for some roles. You must be of the minimum legal age to work at a bar and serve alcohol, for instance.

Employers can also add age requirements for positions requiring employees to operate heavy machinery. In modeling jobs where products target a particular age group, the employer can make age one of the job requirements.

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, winning three barista competitions. You take great pride in the maple leaf you can create in the foam of a latte. You cleared the background check with flying colors. You have excellent references. You’re good to go.

The job interview is going well until the hiring manager asks whether you are in a long-term relationship. In fact, you and your spouse are planning on having a baby soon. You might worry that answering the question truthfully could cost you the job. And you really need that job. 

What is the best way to respond to an inappropriate question? You have a few options:

• Answer the question truthfully and hope for the best
• Refuse to answer the question and do not give a reason
• 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, you’re informed 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. It might be time to consider filing a discrimination claim.

The first step isn’t to file a lawsuit, however. You must start with the U.S. Equal Employment Opportunity Commission (EEOC).

Filing an EEOC Discrimination Claim

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 file a charge, you must do so within 180 days 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 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 lawsuit and can’t reach a settlement, it will notify you 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
• States that the court has the power to decide the dispute (that it has “jurisdiction")
• Set 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 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.

How Can I Prove Illegal Discrimination?

Proving discrimination is demanding. You need the evidence to show that the employer did not hire you because you were a protected class member. 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. 

For example, 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 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 silly enough to admit that you weren’t hired because of your membership in a protected class. So, you usually need to rely on circumstantial evidence.

Circumstantial evidence requires you to make an inference or presumption. For example, if the interview goes very well, but the employer hires a less qualified man than you for the barista position, you may be able to infer that you weren’t hired because of your marital status or potential 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. In a hiring discrimination case, you are responsible for producing enough evidence to persuade a judge and a jury that the existence of discrimination is more likely than not. 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 shifts to the potential employer. They must present a legitimate, nondiscriminatory reason for the hiring manager’s decision. You may hear 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, mainly if the reason the employer offers isn’t specific. But lawyers do it all the time.

What Can You Get If You Win a Discrimination Case?

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 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 wrongdoers for extreme and outrageous behavior. 

If the jury finds that the business acted maliciously, they may award you punitive damages. Based on the size of the company you are suing, there may be limits on compensatory and punitive damages you can recover.

You may also recover all court costs, expert witness fees, and reasonable attorneys’ fees.

Consider Consulting a Lawyer

We hope your job interview process goes smoothly and you get the dream job you’ve been looking for. But if you face illegal job interview questions or questions that make you uncomfortable, trust your instincts. Questions relating to your membership in a protected class or being a part of the minority are inappropriate. And it could reveal a potential employer’s discriminatory intent.

You shouldn’t take employment discrimination lightly. At the very least, you may wish to contact an experienced employment lawyer in your area. They can give you legal advice and discuss your rights in the context of an attorney-client relationship. An employment attorney can help you get the relief you are legally entitled to.