Illegal interview questions
Okay, let’s wrap up Interview Month with how to identify and handle illegal questions.
The hard part is that what’s legal to ask varies a little from state to state. In most places in the US, in fact, it’s employment discrimination against LGBTQ folks is perfectly legal. This means, unfortunately, that in those states, an employer can ask you a lot of stuff that really isn’t any of their business. But this is pretty controversial, so I honestly don’t hear many reports of people getting asked these personal questions. Still, it’s a set of questions that I recommend people prepare for, because it’s always a good idea to be ready for the worst. Even if, like me, you live in a state with strong LGBTQ anti-discrimination laws, though, you should be aware that these cases are still hard to prove, so same deal: prepare for the worst. To see what’s protected where you live, check the ACLU website for updates.
In general, any question that feels personal and invasive is off limits to interviewers. They can’t, for instance, ask if you’re married or what your ethnic background is or how old you are. (They can, however, ask if you are old enough to do something like serve alcohol if that might be part of your duties.) For a list of what’s acceptable and what’s not, see below.
When you’re asked an illegal question, you have a few different options, each with advantages and drawbacks:
- You can answer the question. This is probably my least favorite possible reaction, but I also get why you might be inclined to do so. On the plus side, you won’t have to think of a way to frame your answer, and you might get some points for transparence. But, of course, on the minus side, you are opting to give them information that might allow them to decide against hiring you, or to offer you less money. And the worst part to me is that this information isn’t pertinent to the job, so really they have no business knowing it.
- You can refuse to answer on the grounds that the question is inappropriate. Many people will opt for something like, “I’m sorry, can you please tell me what that has to do with the position?” or, “I’m sorry, I’m not comfortable answering that question.” The advantage here is that you’ve protected information that isn’t appropriate to share, but the drawback is that you’ve kind of scolded the questioner, and that can be very uncomfortable for everyone.
- Finally, my favorite approach is to try to answer the intent behind the question: “I am old enough to work a full 40-hour week,” or, “I can work some evenings and weekends with enough notice, if that’s what you’re asking.” The plus here is that you’re guarding your personal information while being friendly and up-front. The minus is that you have to think of an answer pretty quickly, and in a situation that most of us find stressful.
Ultimately, if or how you answer these questions is up to you. I recommend you brainstorm some ways you might handle invasive questions. I hope you will never have to answer them, and of course you always have the option not to accept a position if you feel their questions to you were illegal or inappropriate. (But I recommend you let HR know in any case, well after the fact, so they can guard against it in the future.)
Have you ever been asked an illegal question in an interview? How did you handle it? I’d love to hear from you!
|Area of Inquiry||Acceptable Areas of Inquiry||Unacceptable Areas of Inquiry|
|Address, Housing||Current address and phone or how the applicant can be reached||If they own their own home or rent it; live in an apartment or house.
Foreign address as indicated national origin.
Name and relationship of the person with whom the applicant resides.
|Age||None||Age or proof of age prior to selection.|
|None||National origin or birthplace of applicant or relatives.
Date of citizenship.
How foreign language skills or accent were acquired, unless it is clearly job related.
|Arrests||None||Any inquiries relating to arrests.|
|Citizenship||May ask if able to provide specified proof upon request that they are a U.S. citizen, legal alien or authorized to work in the U.S.||Other country citizenships.
Whether the applicant or parents are naturalized.
Documentation of citizenship or authorization to work in the U.S. prior to selection.
|If related to ability to perform a specific job, may ask about actual convictions.||Any conviction or court record that is not reasonably or substantially related to an applicant’s ability to perform job duties.|
|Disability||Ability to perform the identified essential functions of the job.||Disability or about serious illnesses.
Nature of or severity of their disability, if visible.
|Education||Academic, professional or vocations schools attended; degrees, certificates, licenses held, if substantially related to ability to perform job duties.||Nationality, racial or religious affiliation of the schools attended.|
|Language Skills||Job-related language skills, including English and foreign languages.||How language or accent was acquired unless job-related.|
|Marital / Parental Status||Whether applicant can meet required work schedules and attendance rules. May ask if they plan to stay on the job, or anticipated absences when related to ability to perform the job.||Marital status, pregnancy plans, birth control, children or child care arrangements; spouse’s name, age, place of employment or income.|
|Military Record||Experience and education in the U.S.
Armed Forces that relates to specific job duties.
|Type or date of discharge, service in another country’s armed forces, or general military experience that is not substantially related to ability to perform specific job duties.|
|Name||Work or education records under a different name for access purposes.||If a woman is a miss, Mrs. or Ms.
Former names if not required to check necessary records.
|Other Qualifications||Any area that directly and substantially relates to an applicant’s ability to perform specific job duties.||Any information not substantially related to specific job duties that can potentially be used for unlawful discriminatory purposes.|
|Photographs||May give notice that photo may be required after hire for identification purposes.||Picture of an applicant unless substantially related to specific job duties; e.g., video-taping a lecture to evaluate applicant’s performance.|
|Race, Color||None||Any questions about race, color of skin, eyes or hair or hair type.|
|References||Professional and character references or who referred the applicant.||Religious references or any other reference that would reflect race, color, or national origin.|
|Relatives||Names of relatives already working for the employer.||Names of applicant’s relatives other than those who work for the employer.|
|Religion||None||Religious affiliations, denomination, customs or practices, holidays observed or name of minister.|
|Sex||Only if the employer has determined that sex is a bona fide occupational qualification (BFOQ) for the job; e.g., women’s or men’s locker room attendant.||Information that closely correlates with gender. The courts interpret BFOQ very strictly.|
|Sexual Orientation||None||Sexual or affectional orientation or a question closely correlated with it.|
|Work Schedule||May inform applicants what the expected work schedule is and ask if they are willing or able to meet that schedule.||Willingness to work on specific religious holidays or if there will be potential conflicts in work schedules associated with medical treatments for a known or suspected disability.|