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Illegal Interview Questions: What You Can and Cannot Ask

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Federal law prohibits discrimination when interviewing or hiring. With our society more sensitive than ever to any signs of prejudice or unfairness, it’s very important to plan and conduct interviews with care. One of the most common (and sometimes serious) blunders employers make is done prior to hiring, when they ask illegal interview questions. Ironically, illegal interview questions are often asked in total innocence.

Maybe the interviewer was simply being chatty (“You have a very pretty name – what country are you from?”), or trying to establish a rapport to make the interviewee feel comfortable (“So, how many children do you have?”). There is also the outside chance that the interviewer has no idea that some seemingly harmless questions are in fact illegal. The fact is, asking these questions can not only get employers in trouble, they also don’t help interviewers find out the information they need. So which interview questions are illegal and how do you avoid the mistake of unintentionally asking them?

It’s How, Not What

The easiest way to steer clear of illegal interview questions is to ask only questions that relate to the job. By not introducing questions or scenarios that will elicit irrelevant information, you eliminate the potential for bias. It’s a given that hiring is a major investment. We all want to make the best possible hiring decisions, and the interview is a key opportunity to determine first-hand which applicant is best for the job. In most cases, illegal questions only become such because of the way they are phrased. Some seemingly obvious illegal questions can be valid, particularly when they are asked to aid the interviewer in assessing the candidate’s ability to perform and succeed in the position they are applying for. Below are subjects that often come up during interviews. Examples are provided to illustrate how questions pertaining to the same subject can be either illegal or otherwise:

Subject: Determining Eligibility to Work in the U.S.

Illegal: Are you a U.S. citizen?

Legal: Are you authorized to work in the United States?

Subject: When Age is a Job Requirement

Illegal: How old are you?

Legal: Are you over the age of 18?

Subject: Verifying Availability to Travel/Relocate

Illegal: How many kids do you have? Are you planning to start a family?

Legal: Would you be willing to relocate if necessary?

Subject: Inquiring About Business/Work-Relevant Affiliations

Illegal: To what clubs or social organizations do you belong?

Legal: Do you belong to any professional organizations that you consider relevant to your ability to perform this job?

Subject: Determining Physical Fitness for Job

Illegal: How much do you weigh?

Legal: Are you able to lift a 50-pound weight and carry it 100 yards, as that is part of the job?

Subject: Verifying Criminal History

Illegal: Have you ever been arrested?

Legal: Have you ever been convicted of a crime?

Subject: Determining Military Experience

Illegal: If you've been in the military, were you honorably discharged?

Legal: What type of training or education did you receive in the military?

Planning for the Interview

Every job seeker worth his or her salt knows that preparation is half the battle when it comes to interviews. It should be no different for interviewers. Planning prepares you to ask candidates for the same position only the necessary qualifications and skills required. When creating a list of interview questions, remember that all you need to know is each candidate's capability to perform the essential job functions required by the position. Taking the time to prepare a list of interview questions that is consistent for all interviewees will ensure equal treatment of all candidates. Your focus should be what the job requires and how each candidate’s work history and track record fits the position you are interviewing for.

With some time, preparation and focus, the interview can easily be your most important – and effective – way of learning without question which person is best for the job.

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