Avoiding Discrimination and Illegal Questions in Job Interviews
Key Takeaways
- Interview questions about protected characteristics, such as race, color, religion, sex, age, national origin, disability, or genetic information, can create discrimination risk, and federal law specifically restricts disability-related and genetic-information inquiries
- Federal and state anti-discrimination laws prohibit discriminatory hiring decisions, and federal law specifically restricts pre-offer disability-related and genetic-information inquiries
- To reduce discrimination risk, employers should focus interview questions on job-related qualifications, including the applicant’s ability to perform the essential functions of the job
This article discusses which job interview questions you can ask and which to save for after you’ve made a job offer and begun onboarding.
Visit FindLaw’s Hiring Process section for more information about the hiring process.
Prohibited Interview Topics and Compliant Alternatives
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws and provides guidance for hiring managers. Below are common topics that can cause problems for interviewers, along with compliant ways to gather necessary information.
|
Topic |
What You Can’t Ask |
What To Ask Instead |
|
You can’t ask about an applicant’s religious beliefs, practices, or affiliation. Avoid statements like, “We expect everyone to be 100% available,” as this may imply you won’t provide time for religious observances. |
To confirm availability, ask, “Are you able to work the required schedule for this position?” If the job requires weekend work, ask all applicants, “This role requires work on Saturdays and Sundays; are you able to meet that requirement?” |
|
|
You may not ask questions that could suggest a bias, such as, “Where are you from?” This can create evidence of national-origin bias and is best avoided. |
This topic is generally not relevant to a person’s qualifications. Focus only on the candidate’s ability to perform the job. |
|
|
“Are you a U.S. citizen?” You may also not use the I-9 Proof of Eligibility form until after you make a conditional job offer. |
Ask all candidates, “Are you legally authorized to work in the United States?” |
|
|
The Age Discrimination in Employment Act (ADEA) bans discrimination against workers over 40. Avoid questions that suggest a bias, such as, “We have a lot of younger workers here, is that a problem?” or “Are you comfortable taking orders from younger managers?” |
If you are concerned about technical skills, ask skills-based questions. For example: “This job requires proficiency in Salesforce. Can you describe your experience with this platform?” |
|
|
Under the Americans with Disabilities Act (ADA), you may not ask if a candidate has a disability, even if it is obvious. You also cannot ask about their general health, medical conditions, or pregnancy. |
Describe the essential job functions and ask if the applicant can perform them, with or without a reasonable accommodation. For a physical job, you can ask, “This role requires lifting 20-pound boxes. Are you able to perform this function?” |
|
|
Many states and cities have salary history bans that prohibit employers from asking about a candidate’s prior wages or salary to help close gender and racial wage gaps. |
State the salary range for the position and ask if it meets the candidate’s expectations. For example: “The salary range for this role is $50,000 to $60,000. Does this range work for you?” |
|
|
States with ‘Ban-the-Box’ or Fair Chance laws prohibit employers from asking about criminal history on job applications. Employers may ask these questions only after a conditional job offer. |
Check your state and local laws. In general, you should wait until after a conditional job offer to run a background check or ask about relevant criminal convictions. |
|
|
You can’t ask about an applicant’s sexual orientation or gender identity. |
No compliant alternative exists, as this information is not relevant to job performance. However, interviewers may share their own preferred pronouns (e.g., in their email signature or introduction) if they wish. If a candidate chooses to share their pronouns, use them respectfully and without comment. |
Avoid Making Unenforceable Promises
In a competitive hiring market, managers may be tempted to make a job opening seem more attractive. However, promises made during recruitment can create legal issues if they go unfulfilled.
Avoid the following when interviewing an applicant:
- Promising job security: Never say anything that an applicant could interpret as a guarantee of long-term employment. Unkept promises can lead to lawsuits.
- Misstating the job position, salary, or duties: Be transparent and accurate. If an applicant applies for a role at a specific salary and you offer something different without a clear reason, they will likely decline and share their negative experience.
- Making predictions about the company’s financial future: All businesses hope to grow. Unsubstantiated claims about company stability can backfire if they prove untrue after the employee is hired.
While a job applicant may volunteer certain personal information, the employer must avoid using information about protected characteristics in hiring decisions. A common example of this is marital status.
Get Legal Help for Hiring Questions
Creating a standardized, compliant interview script and reviewing your job applications are proactive steps to prevent discrimination claims. An experienced employment law attorney can review your hiring materials and help you develop policies that protect your business while attracting the best talent.
Review your job application to ensure it doesn’t ask any prohibited questions. FindLaw’s job application template can provide a legally compliant starting point.
FindLaw will earn a commission if you purchase business formation products through these affiliate links.
Meet FindLaw’s trusted partner LegalZoom, an industry leader in online business formations
Kickstart your LLC in minutes!
Join the millions who launched their businesses with LegalZoom.
LLC plans start at $0 + state fees.
Prefer to work with a lawyer?
Stay Up-to-Date With How the Law Affects Your Life
Enter your email address to subscribe
Did FindLaw Help You Understand This Legal Issue?
Make It a Preferred Google Search Source
Helpful Links
Know Your Rights Before You Decide What’s Next
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.