Interview Questions: What’s Legal, What’s Not

An applicant interview is one of the most important pieces of the hiring process. Whether in-person or by phone, it gives an opportunity to assess a candidate’s personality and professionalism, while ferreting out information particular to the position.

In an effort to learn about background or interests, an interviewer may inadvertently ask questions that reveal information about the candidate’s religion, family status or other protected characteristics. If that candidate isn’t hired, or is hired but later terminated, the fact that the employer asked the question in the interview may be used as proof of discrimination in a lawsuit or investigation.

In short, a seemingly innocent question can be a big problem. How big? Over a two-year period in California, jury awards in discrimination cases had a median of $200,000 – and median legal costs of $150,000.

Steer clear of asking questions that carry the risk of legal liability; instead, use questions that focus on the candidate’s ability to perform the tasks associated with the position to which he or she applied. Here are a few suggestions:

Never Ask Ask Instead
Are you a U.S. Citizen? (unless requirement) Are you legally authorized to work in the U.S.?
What is your native language? What other languages are you fluent in?
How long have you lived in the U.S.? Where are you currently living?


Never Ask Ask Instead
What religion do you practice? What days are you available to work?
Which religious holidays do you observe? Are you able to work our required schedule?
What clubs and social organizations do you belong to? Do you belong to any trade organizations relevant to our open position?


Never Ask Ask Instead
How old are you? Are you over the age of 18?
At what age do you plan to retire? What are your long-term career goals?


Marital/Family Status
Never Ask Ask Instead
Is this your maiden name? Have you used any other names?
Do you have or plan to have children? Are you available for overtime or travel?
Can you get child care on short notice? Does overtime or travel create issue for you?
What do your parents do for a living? What made you interested in our industry?
If you have a child, will you return to work? What are your long-term career goals?


Never Ask Ask Instead
We’ve always had a man/woman in this role, how do you think you would do? What are the attributes you feel you could bring to the table for our company?
How do you feel about managing a team of men/women? Tell us about your past management experience.
What do you think of interoffice dating and fraternizing? Tell us about difficult situations you have managed in the past.


Health & Physical Abilities
Never Ask Ask Instead
Tell us about your lifestyle, do you smoke or drink? Have you in the past violated policy regarding tobacco and alcohol?
How tall are you? Can you reach the top of a 5’ shelf?
How much do you weigh? Are you able to lift up to 50lbs?
How many sick days did you take last year? How many days work did you miss last year?
Do you have any disabilities? Are you able to perform the duties of the job?
Have you had any operations? Are you able to perform the duties of the job?


Other Areas of Concern
Never Ask Ask Instead
How far is your commute? Can you start work at 8 a.m. each day?
Do you live nearby? Are you willing to relocate?
Have you ever been arrested? Have you ever been convicted of a crime?
Were you honorably discharged from the Military? Tell me how your military experience could benefit our company.
Are you a member of the National Guard or Reserves? Do you have any upcoming commitments that might require extensive periods away from work?

This is an area where a little planning and preparation goes a long way. Think through the skills and qualifications most necessary for the position, and craft interview questions designed to elicit relevant responses. While interviews are conversations, “winging it” is not a good idea for substance or liability. Going in prepared will result in a more productive process – and help you avoid potential discrimination.

Concerned your interview process may be headed in the wrong direction? Contact People People for help preparing for your next applicant interview.