The Most Common Illegal Job Interview Questions

Josh Didawick

Josh Didawick

HR Professional

A lot of managers are able to rise through the ranks by delivering on results, increasing responsibility, and learning their business. As their career progresses, many find themselves at some point sitting on interview panels and making hiring decisions. Many organizations will make this transition as smooth as possible. Proactive companies will offer training and development to not only avoid pitfalls and legal liability, but to also help managers get the information necessary to make good hiring decisions.

Unfortunately, some organizations tend to think this is knowledge and skills that people just pick up along the way. They don’t train, they don’t educate and they open themselves up to bad hiring practices and tremendous legal liability.

If you are in charge of hiring for a position, it is important to know what to ask. Candidates are entitled to go through fair selection processes and organizations can hire the best when they adhere to the rules.

Here are 5 common illegal interview questions and why you need to avoid them.

Do you observe any religious holidays?

Any type of question that gets into holidays a candidate observes is dangerous territory, and probably illegal. The Civil Rights Act of 1964 prohibits, among other things, discrimination based on religion. As a manager, you may want to convey a message that the job you’re hiring for requires certain work days or is a demanding schedule. It is perfectly normal and justified to discuss the schedule of the job for which you are hiring, but leave holidays out of it. You can get your point across just as easily by explaining the scheduling requirements and asking if the person understands, has any concerns or if they think it would pose a problem down the road.

Have you ever been arrested?

When it comes to hiring, past behavior is usually indicative of future behavior. People with stable and successful work histories tend to perform well. Those with questionable work histories have a tendency to not always make great hires. Asking about a criminal history can shed a lot of light on someone’s decision-making, values and motivations, but you have to ask the right question. Asking if someone has been arrested is prohibited, asking about past convictions is permitted.

There was a time that a criminal conviction question was commonplace for employment applications. More recently, many employers, including many government agencies, have removed the question in order to reduce barriers for people with convictions from gaining employment.

How old are you?

Too many hiring managers fall into the trap of asking this question. Oftentimes they have established a good rapport with a candidate, a good conversation is underway, then innocently someone asks the interviewee how old they are. Most of the time it is when the candidate is early in their career, but it is an illegal question all the time.

Is there a minimum age requirement for the job? If so, ask if the person meets the age requirement. Otherwise, keep your conversation and hiring decisions to the job requirements and the candidate’s experience. In fact, people over the age of 40 have protections under the Age Discrimination in Employment Act, which prohibits discrimination based on age.

Where are you from?

As an interviewer, you have to recognize what is permitted in the hiring process. Questions about national origin and ethnicity are not only out of bounds, they are illegal. Again, the Civil Rights Act of 1964 prohibits discrimination based on national origin. Oftentimes, an interviewer is curious about someone’s personal background, but the interview is not the time nor the place to delve into the subject. The closest a hiring manager could get to this topic is to find out if someone is authorized to work in the United States.

Are you in good health?

Many jobs have physical requirements, so how can a supervisor find out if the person they are interviewing will be able to accomplish the necessary tasks? First and foremost, do not ask such broad questions about someone’s health and/or medical conditions. The Americans with Disabilities Act and Genetic Information Nondiscrimination Act are just two laws that protect people’s medical and genetic information.

As an employer, you are still allowed to ensure that the person can physically do the job. The first step would be to have a job description that provides an accurate reflection of the physical requirements. Second, go over the requirements or have the candidate read the requirements. Finally, ask the applicant, “Can you accomplish the tasks of this job with or without a reasonable accommodation?” It is as simple as that. Employers hiring for physically demanding jobs may also want to consider a pre-employment physical, but that would take place after an employment offer were made.

Just knowing which questions to avoid isn’t enough. You have to understand why those questions are illegal so you can avoid even the appearance of trying to gain that particular information. Most interviews are pleasant experiences where the candidate and the interviewer(s) are able to get to know one another. I think most hiring managers simply want to do the right and ask the best questions to hire top candidates. Unfortunately, without knowing and understanding some of the intricacies of lawful interviewing practices, many fall into some of these traps and open their organizations up to tremendous legal liability.

About The Author

Josh Didawick
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Josh Didawick

Josh Didawick is a seasoned HR professional and consultant with extensive experience creating and guiding organizations’ HR strategies, as well as coaching individuals committed to successful careers. He specializes in taking on complex organizational issues to affect positive change and high performance. For individuals, Josh helps them put their best foot forward when seeking that next career, promotion or milestone in the workplace. Josh has had several articles published and presented at conferences on HR-related topics.

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