There are many seemingly conversational topics that can be interpreted as illegal when asked during an interview. Most illegal interview questions are asked by accident. Something as simple as, “Oh, I grew up there too! What town are you from?” could cause a problem and be viewed as discriminatory by an outside eye. In this guide, we’ll cover everything you need to know about illegal interview questions, including:
- The 3 Basic Rules around Interview Questions
- Most Asked Illegal Interview Questions
- 5 Better Ways to Ask Interview Questions
- Interview Training Tips & Resources
Please note that this article contains general information, and we suggest consulting your own legal professional for specific advice pertaining to your interview process.
The 3 Basic Rules around Interview Questions
In general, if you follow the 3 rules below when interviewing, you will avoid asking illegal interview questions. Those rules are:
1. Stay away from discriminatory questions.
These are any questions that revolve around age; race, ethnicity, or color; gender or sex; country of national origin or birthplace; religion; disability; and marital/family status or pregnancy. The full list of protected classes can be found here on the Equal Employment Opportunities Committee (EEOC) website. And remember, some states also include gender identity, sexual orientation, and financial status as protected classes.
Avoid questions like:
- When did you graduate from college? (age)
- Are you a U.S. citizen? (national origin)
- Will you need personal time for any particular religious holidays? (religion)
- Do you have any student loan debt? (financial status)
2. Interview questions should all relate to the job at hand.
Try not to veer into chit-chat that is around personal details and remain laser-focused on asking questions that are necessary for the job. Chit-chat is how protected situations might come up by accident and lead you into weird territory.
Stay focused on the job being interviewed for, and you can always say to a candidate, “We are on limited time, so let’s get back to the interview questions” or something of the like to bring things back into focus. This is why we also recommend structured interviewing below, because then you are prepared with a set list of questions ahead of time.
3. If a topic makes you nervous or seems like it could be a gray area, avoid it.
If a candidate brings up said gray area, either pivot topics or tell them you’ll write down their question and get back to them. Move back to your prepared question list or ask about a point on the job description. We talk more about this in our section below on candidates who volunteer information.
Most Asked Illegal Interview Questions
We decided to go to experts in the field and on the ground regarding the most common illegal interview questions they have seen. David Miklas, P.A., is a labor & employment lawyer with 18 years of experience working with employers of 5-5000 employees. The top 8 illegal interview questions he sees are:
- Are you married?
- Have you ever been divorced?
- Are you pregnant?
- How many kids do you have?
- You’re not a Muslim, are you?
- What church do you go to?
- Who is your Pastor?
- You’re not gay, are you?
Some of these seem very obvious in their violations, but others like asking someone how many children they have, are more subtle. Some of our other sources pointed out seemingly innocent questions that violate employment laws including these two from Taylor Dumouchel of Peak Sales Recruiting:
- We see you graduated from high school in 1971, do you plan on retiring soon?
You cannot ask someone how old they are, AND you cannot discriminate against someone who seems too old or too young. It does not apply to how well someone can do the job. You may ask, however, what their 5-year career plan is.
- If you’re a mother, will you have to leave early every day or avoid travel?
You cannot ask this question and cannot discriminate against a woman because she has children. You cannot ask about childcare. You can, however, ask if working late or traveling on weekends will be okay with the candidate.
Another good gem for our readers who have a retail store or something similar is from Matt Franks, the Managing Director at Dreambooth:
- Is English your first language?
Many retail companies who are hiring people for consumer-facing roles often make the mistake of asking this question to interviewees from other countries. The fact is, though, it’s not actually an employer’s lawful right to know if a language is a person’s first language or not.
From our HR expert: Please note that many companies do ask the above question. Instead, they should ask, “Are you native-level fluent in English?” Or have a candidate rank themselves from 1-5 with 5 being fluent in English.
10 More Illegal Interview Questions to Avoid
From myself, as an HR expert and recruiter, here are 10 more illegal interview questions to avoid (and what to ask instead when appropriate):
- What arrangements are you able to make for childcare while you work?
- How old are your children?
- What does your wife/husband/partner do for a living?
- Where did you live while you were growing up?
- Are you comfortable working for a female/male boss?
- There is a large disparity between your age and that of the position’s coworkers. Is this a problem for you?
- Have you ever been arrested? (Ask instead, “Have you ever been convicted of a crime?”)
- Do you have a car? (Ask instead, “How long is your commute to our office?”)
- How long do you plan to work until you retire?
- Have you experienced any serious illnesses in the past year?
But what about if you have a candidate who volunteers information around the above questions, even if you didn’t ask them? That happens all the time.
What About When A Candidate Tells Me Something Inappropriate?
People overshare these days— on social media, in line at the grocery store, and during interviews too— especially when a candidate is nervous and has a rush of adrenaline.
If a candidate accidentally says something like, “Well, I beat breast cancer last year” or “I’m having some credit problems paying off my debt, which is why I want a new job”, you just need to follow 3 steps:
- Pause in your answer to them.
- Make solid eye contact in order to ensure your point will get across.
- Say something like, “Let’s stick to the set of questions I have here, we are short on time,” and move right onto the next question.
If the candidate goes there again, you can be more firm and say, “We unfortunately are going into personal details. I’ll ask you to stick to answering the questions at hand, please.” If the candidate still continues down oversharing lane, I would advise you to potentially even end the interview short as politely as possible. This indicates that they aren’t listening, or that they are looking for you to open an illegal can of worms. At worst, they could be a lawsuit seeker.
Here’s 5 ways that you can be prepared for every interview situation you might have.
5 Better Ways to Ask Interview Questions
The best way to avoid illegal interview questions is to be prepared. At their root, the 5 interview techniques we will talk about below help you be more prepared and comfortable during your interview. You don’t want to be rushing, or unsure what to ask next.
Prior to scheduling any interviews, consider our 5 options below for your open job and prepare accordingly along with your job description.
1. Phone Screen Interviews
Whether it’s 5 minutes or 20-30 minutes, a phone screen interview can save you a lot of time and awkwardness over having a candidate right into your office. We have a resource with a 5 minute phone screen and a longer 30 minute template that can work for any job. You can also customize the template with over 50 more questions.
2. Candidate Questionnaires
A great way to get more insight than a resume and a quick phone screen is to send a candidate a questionnaire. Some of my clients do this before the phone screen, and some of them do it after and before bringing someone in for an interview. Depending on the role, either could make sense.
Basically, you could create a small 2-3 question questionnaire that elaborates more on the role than the job description and asks some pointed, but appropriate, questions about if this job is a fit for the candidate and why.
For example, questions like the following can help you learn more about a candidate and if they are a fit (as well as help them to self-select out if they are not):
- “As a startup, we tend to go by the motto ‘work hard, play hard.’ Does this fit you or not and why or why not?”
- “We are a landscaping business that is passionate about what we do and many times, even if an email chain starts at 7 pm, you’ll get an immediate answer. This can be a bit intense for some people. Have you ever worked in a place like this before?”
A candidate who maybe has a large family with several kids will most likely self-select out after reading a question or two like that, which means not only did you get to what you needed to know without infringing on any laws, but you also saved them time too!
3. Behavioral Interview
Behavioral interview questions are questions that revolve around work-related situations that ask a candidate to draw conclusions and provide insight from their past experiences and decisions. These can give you great insight into whether or not a candidate is a great fit for the job at hand, and all of the behavioral interview questions should revolve around the job and its tasks. We have 2 great resources on a behavioral interview template (and more on how to conduct one) and then the top 37 behavioral interview questions from around the web and from us.
4. Structured Interview
Especially for new managers or people who haven’t interviewed a lot, a structured interview can be a great thing. A structured interview is where you ask the same questions of every candidate, and even multiple managers ask the same questions within a range to the same candidates. Better yet, it’s nearly air-tight for mitigating liability around asking the wrong questions, as well as for supporting your hiring decisions based on rankings from those same questions.
We walk you through structured interviewing with a free template here.
5. Panel Interview
A 5th style of interviewing, panel interviewing is where you have more than 1 interviewer speaking to a candidate together (but no more than 3 people!) The panel can also do a structured interview, or use behavioral interview questions, but more importantly is that you now have 2 drivers together keeping the interview legally in check. Especially if you have new or young managers interviewing, this could be a good solution for your business.
Using a combination of the 5 styles above, or using them as steps, can be a great way to make sure that your interview questions are legally compliant.
Interview Training Tips & Resources
Finally, we have a few more interviewing resources for you in addition to our links (which we will recap here):
- How to Write a Job Description
- Federal Labor Laws
- Our Massive 120 Interview Questions Guide
- Phone Screen Template & 51 Questions
- Structured Interviews
- Behavioral Interview Questions & How to do Behavioral Interviews (with Template)
- Society of Human Resource Managers’ (SHRM) Guide to Great Opening & Closing Interview Questions
- SHRM’s Interview Guide
The Bottom Line
Illegal interview questions can make for funny stories, until you’re on the other side as a business owner and facing a lawsuit. It is very easy to get distracted during an interview and that’s why we recommend you prepare in advance before interviewing a candidate, perhaps even using a structured interview, so that you stay on target with questions related to the job. You also may want to train your managers in interview techniques, laws, and pitfalls.