Legal and Illegal Questions
Federal and state laws make it illegal to ask questions during hiring interviews that discriminate. Job applicants need to be knowledgeable about what questions are illegal in an interview and how to deal with the situation if it arises. Employers must find ways to comply with legal statues and still find ways to gather the information they need to assess whether a potential hire is appropriate for the job.
The Interviewing Process:
Attending an interview with a prospective employer is an exciting and nerve-wracking experience for job seekers. Adequate preparation before the interview includes acquiring knowledge and information about the employer, creating pertinent questions to ask the interviewer about the job, selecting proper attire, and rehearsing reasons why the applicant is the best choice for the job. However, it is equally important to know the questions that are illegal for employers to ask during interviews and how to handle the situation if asked such questions.
The federal statute which prohibits discrimination of job applicants based on veteran's status, disabilities, age, sex, race, color, religion, or national origin is the amended Title VII of the Civil Rights Act of 1964 (Santen et. al. n.p.). In addition, some states have extended this to include prohibition of discrimination based on marital status or sexual orientation (Santen et. al. n.p.). The Equal Employment Opportunity Commission states “any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification” (Title 29, n.p.). While these laws may seem obvious, employers can surprise applicants with inappropriate questions; therefore, it is best to be knowledgeable about what an interviewer can and cannot ask. Additionally, employers need to know the best way to phrase questions to potential hires so they can acquire the information they need and remain within legal limits.
Questions about age are illegal, including, “How old are you?” “What year did you graduate from high school?” or, “Are you younger than our company’s regular retirement age?” Because there are laws in place requiring minors to have work permits, employers can ask if a minor has a work permit. They may also ask the interviewee that if they are hired, whether proof of age can be furnished (“What You Can Ask” 1). If confronted with illegal questions about age, an interviewee can choose tell his age, to answer with something such as, “If I am hired, I will be happy to provide proof of my age,” or choose to ignore the question.
Questions about religion during interviews are also illegal, including the applicant’s particular religion, creed, denomination, parish, pastor, or the religious holidays observed. Employers may not state that certain religions are required to work on their holy days, and they may not ask for recommendations from the applicant’s church clergy. However, employers may give information about the hours and days of work-time they require so applicants can avoid possible conflicts with their religious observances (“What You Can Ask” 4). If confronted with illegal requests regarding religion, an interviewee could respond in several ways. He could answer the question, he could ask, “How is this question relevant to the position for which I am being interviewed?” or he could choose to ignore the question.
Questions regarding race and national origin are illegal, including questions regarding skin color, eye color, hair color, or relating directly or indirectly to a candidate’s race. Additionally, interviewers may not ask a general question such as, “What country are you a citizen of?” or questions about an applicant’s birthplace, national origin of his spouse or parents, first language, port of entry, or the date of citizenship of the applicant or any of his family. Employers can legally ask whether an applicant is a U.S. citizen, and if not, if he intends to become one. They may also ask if the applicant’s spouse is a U.S. citizen. Additionally, employers can ask if the applicant will be able to provide proof that he has the right to work in and remain in the U.S., and foreign language skills may be queried about if relevant to the job (“What You Can Ask” 1,3). If asked illegal questions about race or national origin, interviewees could respond by answering the question truthfully, inquiring about how the question is relevant to the job, or he could choose to ignore the question.
Disability is another category that requires careful handling by employers. According to The Rehabilitation Act of 1973, employers cannot ask job applicants “general questions about whether they are disabled or asking them about the nature and severity of their disabilities” (“What You Can Ask” 1). However, employers can invite applicants to discuss the extent of their disabilities, as long as they make it clear that the invitation is voluntary, the information is only asked to remedy discrimination and create opportunities for the disabled, that the information will be kept confidential, and that refusing to provide information regarding the disability will not garner punishment. Employers may ask the applicant if he is able to complete all necessary job requirements and complete them safely. A good question for the interviewer to pose is, “How would you accomplish this particular task?” If asked illegal questions about disability, an interviewee could respond by answering the question, by stating something such as, “With reasonable accommodation, I can easily perform any of the tasks required for this job,” or by refusing to answer the question.
There are many questions about marital and family status inappropriate for interviews. These include questions such as, “Is this your maiden name?” “Do you have kids, or do you plan to have children?” “Do you have a babysitter available anytime you need to travel?” “What relative should we notify in case of emergency?” “How do your parents make their living?” and “If you become pregnant, will you continue to work and come back after maternity leave?” (HR World n.p.). Naturally, employers are concerned that potential hires will be able to work the days and hours required in order to be productive. Instead of the previously stated illegal questions, employers can ask questions such as, “Have you worked under any other name?” “Some travel and overtime may be required for this job. Will this be a problem for you?” “Who can we contact for you in case of an emergency?” “What is your experience with the [Z] age group?” “How did you become interested in the [Z] field or industry?” and “What is your long term goal for your career?” If asked illegal questions about marital or family status, as usual, the applicant can answer the question, reassure the interviewer that they have no impediment to fulfilling the job requirements, or refuse to answer the question.
There are many other questions are illegal to ask in interviews. These include asking who the applicant lives with, whether they rent or own a home, what the applicant’s credit rating is, arrests without convictions, criminal records unrelated to job responsibilities, the religious affiliation of schools attended, questions about a spouse and his or her employment and salary, names and other information about relatives other than those already on the staff of the employer, gender of the applicant, request for military records, request for photographs of applicant before hiring, and requests for references from clergy or anyone revealing race, national origin, sex, or ancestry (“What You Can Ask” 1-4). A final consideration for the job applicant is if he feels pressured to answer illegal questions by a prospective employer, this could reflect the type of environment that will be part of the job atmosphere if he accepts the position. Though the interview is conducted in order for an employer to discover if an applicant will suit the job, it is also an opportunity for the applicant to ask his own questions and decide whether or not he really wants to work for this employer.
References
HR World Editors. (n.d.). 30 Interview Questions You Can't Ask and 30 Sneaky, Legal Alternatives to Get the Same Info. HR World. Retrieved 12 February 2012 from http://www.hrworld.com/features/30-interview-questions-111507/
Santen, Sally A., Davis, Kevin R, Brady, Donald W., and Hemphill, Robin R. (2010). Potentially Discriminatory Questions During Residency Interviews: Frequency and Effects on Residents' Ranking of Programs in the National Resident Matching Program. Journal of Graduate Medical Education, 3, 336–340. doi:10.4300/JGME-D-10-00041.1
Title 29. (2009). Code of Federal Regulations, section 1604.7
What You Can Ask and What You Can’t – Legal/Illegal Interview Questions. (n.d.) Michigan Tech Human Resources. Retrieved 12 February 2012 from http://www.admin.mtu.edu/hro/forms/whatyoucanandcantasklongversionmay05.pdf
