When you are hiring and want to connect with someone during a job interview, it can be easy to chat as if you are friends. Don’t.
An interview is not a friendly meet-cute, it’s a time to decide who is best able to do the job your company is hiring for.
And when you haven’t done your homework before the meeting, the first five or 10 minutes of getting to know a job candidate can carry the greatest legal risk, according to Domenique Camacho Moran, a New York-based employment lawyer who represents employers.
“The biggest risk in an interview is a lack of preparedness because when you are not prepared for an interview, questions can be asked that are not intended to be inappropriately probing, but... the shortcut question can in fact be inappropriate,” Moran said.
Here are some of the questions you should be very careful not to ask because you could land yourself and your company in legal hot water.
1. Are you married? Do you have any children? How old are they?
When you are trying to make conversation with someone you don’t know, you may point out the engagement ring on their finger, or ask if they have children.
California-based labor and employment attorney Ryan Stygar said that unintentional or not, questions related to marriage and kids can send a message that you are screening for candidates who could become pregnant or may have child care issues.
“Overwhelmingly, women get asked these questions more than men. There is also a sort of implicit bias happening there,” he said.
“If you’re worried about ‘Oh you might become pregnant later’ and you’re asking these questions, that is going to be a Title VII violation, it’s going to be a Fair Employment and Housing Act violation, and you could get sued. Especially if it leads to you hiring a disproportionate amount of nonpregnant people or a disproportionate amount of men,” Stygar added.
He noted that when this kind of suits happen against employers, plaintiffs have to prove there is a pattern of discriminatory hiring practices. So instead of asking about someone’s personal life to figure out if they are going to stick around for a big project, you can simply ask if they’re able to fulfill the job duties.
2. When did you graduate?
The Age Discrimination in Employment Act of 1967 is a U.S. labor law that protects job applicants who are 40 and older from being discriminated against on the basis of age.
Asking when someone graduated makes it all too easy for an employer to figure out the likely ages of job candidates and can lead to future discrimination claims against the employer.
“If [the] answer is in the ’80s, ’70s, or earlier, you can almost hear [the hiring manager] doing math in their heads,” said Donna Ballman, a Florida-based employment attorney and author of “Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.”
3. What school did you go to?
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against job candidates on the basis of national origin or race.
Moran said asking about schooling may be intended to be totally benign but can carry legal risk because where you went to school can give an interviewer insights into where you were born and your racial demographic.
“A better way to ask that question is ‘I see you graduated from Notre Dame. What did you like about Notre Dame? How was your experience?’” Moran suggested. That way, you can connect with a candidate while staying away from asking questions that could potentially violate a protected federal category.
4. Are you planning to retire soon? Do you have grandchildren? Can you handle working around Gen Z?
Moran said the most frequent missteps employers make are around age-related interview questions.
A better way to learn about a potential employee’s career expectations is to ask something like, “‘We expect that this job is going to take three years. Are you willing to commit to three years, assuming all goes well?’” Moran said. “That’s an appropriate way to ask that question, as opposed to asking ‘Do you plan to retire in the next three years?’”
Stygar said questions like “Can you handle working around Millennials?” that stereotype people based on their age can suggest you are screening out people from previous generations.
“It’s not catching up with a friend, it’s not a date, it’s not an opportunity to make a new friendship.”
- LABOR ATTORNEY RYAN STYGAR
5. What are your beliefs about abortion/vaccination/religion, etc.?
Asking someone how they feel about the latest political headline can be a conversation starter, but it can also be legally treacherous. If you start asking job candidates about their political beliefs, it can open the door to discriminatory illegal conduct.
“It sounds so outrageous, but a lot of smaller companies will do it because they think ‘I just want like-minded people,’ but it’s work,” Stygar said. “You don’t need to be screening people based on their beliefs on abortion, their beliefs on gun control.”
With vaccination in particular, though, you can frame questions around the business requirements necessary for the job instead of making it about political beliefs with a simple yes-or-no question like “Are you able to meet all of our vaccination requirements?” Stygar said.
6. Where are you from? Are you a U.S. citizen?
Title VII protects people against employment discrimination on the basis of national origin. Job candidates are under no legal obligation to disclose their immigration status or where they grew up during a job interview.
Stygar said asking about a candidate’s citizenship during a job interview is discriminatory and can screen out people who are from other countries outside of the U.S.
“A lot of employers say ‘Well, wait a minute, I have to do an I-9 [Employment Eligibility Verification form]. I know I’m not allowed to hire people who aren’t legally authorized to work in the U.S., so what do I do?’ You ask ‘Are you legally authorized to work here?’ You can be legally authorized to work here without being a U.S. citizen. There’s no need to ask if someone is a U.S. citizen.”
Similarly, asking a candidate a question like “You have a lovely last name. Where are you from?” can seem innocuous, but it’s a “lovely stroll that leads to a minefield,” Stygar said.
“It starts off complimentary, but you can’t discriminate on candidates based on national origin, so if someone has a name that is unusual to you that you haven’t seen before and you suspect they are from another country, you need to keep that to yourself,” he said. “You have no business poking around and saying ‘Hey, where are you from?’”
7. What was your salary at your previous job?
In at least 21 states, including Illinois, Connecticut, California, Delaware, and Massachusetts, and several cities including New York City, Philadelphia, and Kansas City, there are salary history bans in place as an effort to stop racial and gendered pay inequities. They make it illegal to ask what a candidate previously earned.
However, you are typically within your rights to ask a broad question like “What are your salary expectations?”
8. Have you ever been arrested or convicted of a crime?
Employment attorneys said it’s more likely for this kind of question to come up in a job application than in the interview stage.
Fifteen states have mandated the removal of conviction history questions from job applications for private employers, and more than 30 states have adopted a “ban the box” policy that makes it illegal to ask job candidates conviction and arrest history questions on job applications.
If you do ask about someone’s conviction record and it has nothing to do with their ability to do the job, the job candidate might have potential discrimination claims, Ballman said.
9. Do you need medical accommodations?
One of the most common mistakes is asking job interview questions about disabilities, Ballman said.
“A potential employer can’t ask any questions about any medical issues or require a physical examination before making a job offer,” she said. “Prohibited questions would be things like, ‘Will you need any accommodations to perform this job?’ ‘Do you have any medical conditions that would limit your ability to perform this job?’ ‘How long will it take for your broken arm to heal?’ or ‘What medications are you currently taking?’”
The reason it’s risky to ask this is that the Americans With Disabilities Act prohibits job discrimination based on disability and grants candidates the right to seek reasonable accommodations for those that qualify. When you directly ask candidates if they need accommodations before you offer them the job, it can come off as if you are purposefully screening out candidates who need them.
If you find out about someone’s disability through your interview questions and you then don’t end up hiring them, they could have a disability discrimination case, Ballman said.
Instead, frame your interview questions strictly around whether a candidate is able to perform the job. For instance, questions like, “Are you able to perform all the duties of this job with or without accommodations?” and “Can you meet our attendance requirements?” are better ways to ask.
The biggest takeaway of all? When in doubt, don’t go off script and wing it.
“Don’t be afraid to be mechanical,” Stygar said. “The purpose of the interview is to determine ‘Is this candidate going to successfully complete the job duties you want to hire them for?’ It’s not catching up with a friend, it’s not a date, it’s not an opportunity to make a new friendship. That might happen later in the employment process, but you need to make sure your process is mechanical, it’s uniform, and it’s designed in a way that everyone gets a fair shot.”