Common Illegal Interview Questions & How to Avoid Them
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Charlette has over 10 years of experience in accounting and finance and 2 years of partnering with HR leaders on freelance projects. She uses this extensive experience to answer your questions about payroll.
This article is part of a larger series on Hiring.
Illegal interview questions address subjects that are not allowed, generally related to protected categories such as age or religion. You will want to steer clear of these questions as they may violate discrimination laws. In addition to age and religion, other areas to avoid asking questions about during interviews include:
- Disability
- Gender, sex, sexual orientation, and pregnancy
- Marital or family status
- Race or ethnicity
Note: Most of these subjects cross state lines and will be the same everywhere. However, with the rise of remote work, you’ll need to be sure you’re not asking questions of candidates in a certain state that may be illegal.
Examples of Illegal Interview Questions
We have broken down our list of illegal interview questions into the categories of protected classes listed above. Be sure that you do not ask any of the questions listed or similar questions to avoid possible discrimination during the interview process.
The Age Discrimination in Employment Act states that employers may not discriminate against potential employees based on age. Below are questions to avoid during your interviews so that you do not violate this law:
- How old are you?
- What is your date of birth?
- How long have you been working?
- We see you graduated some time ago. Do you plan to retire soon?
- How long do you plan to work until you retire?
- There is a large gap between your age and that of co-workers. Is this a problem for you?
The Americans with Disabilities Act (ADA) prohibits discrimination against any potential employee with a disability. Some common questions to avoid during your interview include:
- Do you have any disabilities?
- Have you experienced any serious illnesses in the past year?
- Have you had a workplace injury?
- Have you ever filed for workers’ compensation?
- Do you take prescription medication?
- Have you been diagnosed with any illnesses (i.e., mental health, cancer)?
- Did you take an extensive amount of sick leave at your previous job?
Per the US Equal Opportunity Employment Commission (EEOC) it is unlawful to discriminate against any potential employee due to their gender, sex, sexual orientation, or pregnancy. Avoid these questions during your interviews:
- What is your sexual orientation?
- How do you identify? (Note that it is acceptable to ask an applicant’s pronouns.)
- Are you male or female?
- Do you prefer to be called Mr., Mrs., or Miss?
- Have you had transition surgery or reassignment?
- Are you comfortable working for a female/male boss?
- Are you pregnant or plan to become pregnant soon?
- Will you need to leave work at any time due to a pregnancy?
The EEOC mandates that employers may not ask any questions during an interview related to a person’s marital or family status. Below are questions you should not ask during an interview:
- Are you married, single, or divorced?
- Do you plan to get married?
- What does your wife/husband/partner do for a living?
- Do you have a backup plan for your children if they become sick?
- How many kids do you have?
- How old are your children?
- Do you live with a family member?
Title VII of the Civil Rights Act prohibits employers from discriminating against candidates based on their race or ethnicity. Questions you should not ask during an interview include:
- Where were you born?
- What country are you from?
- What is your native language?
- Is English your first language?
- What type of VISA do you have?
- What type of accent do you have?
Religious discrimination is governed under Title VII of the Civil Rights Act, which states that no employer may discriminate against a potential employee based on their religion (or lack of religious belief). Refrain from asking any of the below questions during an interview:
- What is your religion?
- Are you religious?
- Do you attend church regularly?
- What church do you go to?
- Who is your pastor?
- What religious holidays do you observe?
- Do you have specific clothing required for your religion?
The following list gives you a general idea of other topics and questions to avoid. These questions are not illegal in every state, though they are illegal in a growing number. For example, the last question below about salary history violates new laws in several states, including California and New York. As a general rule, it’s simply best to avoid even the appearance of illegal subjects.
- Have you ever been arrested?
- Do you have a car?
- Where did you live while you were growing up?
- Do you own your own home or rent?
- Do you drink, smoke, or use illegal drugs?
- Do you use medical marijuana?
- What is your political affiliation?
- Do you have any outstanding debt?
- What type of military discharge did you receive?
- Have you ever had your wages garnished?
- Have you ever had a bankruptcy?
- Are you a union member?
- Have you ever filed a workers’ compensation claim?
- Do you have plans that can prevent you from working full time?
- What is your current or former salary? This falls under salary history ban laws in most states.
To avoid illegality, you can ask some questions differently or earlier in the hiring process, such as those around criminal background, birth date, and marital status. For example, instead of asking the candidate if they have ever been arrested, you can ask if they have ever been convicted of a crime. Note that in some states, this question is now also illegal, until after a job offer has been extended or unless the crime directly relates to the position.
Questions in the Gray Area
Not all interview questions fall nicely into the legal or illegal category. Some may appear harmless, and although they may not be strictly illegal, we recommend avoiding them. There are plenty of great interview questions to ask instead during your limited time with a candidate.
Here are a few examples of questions in gray areas, along with brief explanations of why you should avoid them.
When interviewing candidates, always steer clear of questions relating to gender. Even if the situation describes reality at your company, focus your questions on the traits necessary to be successful in the role, avoiding gender altogether.
This question, or some variation of it, is asked more frequently than you might think. Many interviewers consider it small talk, like how many kids do you have or where do you live. Our recommendation is to avoid all small talk questions as many border on or are actually illegal.
Another small talk question, this could be discriminatory if the candidate is not from the US. It’s better to be more direct with your questions.
Another discriminatory question that could unfairly eliminate candidates from other countries. Unless speaking native English is a requirement for the role and directly related to the core duties of the position, don’t ask this question.
This question seems fine on its face and is acceptable to ask after a person has been hired. But asking it during the interview process could create risk for the company if the person answers with a foreign-sounding name or the name of their same-sex partner.
5 Steps to Avoid Illegal Interview Questions
The best way to avoid asking illegal interview questions (or just bad ones) is to be prepared. The best-prepared employers use a system to structure their interactions with candidates.
First, write a simple and professional job description that minimizes potential risks from the start. When it comes time to run the actual interview, we highly recommend following a structured interview process where you prepare a list of questions and ask those questions to each candidate.
Follow-up questions should be asked but keep them clearly focused on the topics at hand. Deviations from the list and asking vastly different questions of different candidates can lead to claims of discrimination and further legal troubles.
1. Write a Rock-solid Job Description
Your job description is often the first thing a candidate reads about your business—and thus, in a sense, is your first interaction with them. Just as you would greet a new visitor to your business with professionalism and respect, your job ad should do the same. If there’s any perceived bias in your job description, it can easily spill over into the rest of the hiring process.
For example, “Looking for young, enthusiastic rockstars willing to give it their all” could present a potential age bias. Instead, you should focus on the requirements and demands of the job: “Candidate must be OK with long hours and monthly business trips for three to five days.”
2. Include a Questionnaire
A questionnaire on your application lets you ask candidates important questions right away, such as if they hold a certification or meet a language or educational requirement. Be aware that just because this isn’t an interview does not mean you can ask any question you want. You still need to avoid illegal questions in a questionnaire for applicants.
Job boards, such as ZipRecruiter, may include an optional questionnaire-builder when you post a job ad. This makes it easy to ask these questions straightforwardly and professionally. You can get these key interview questions out of the way early, and in a way you know will be compliant. A questionnaire also ensures candidates are aware of your requirements right away, and that no under-qualified applicant sneaks onto the shortlist.
3. Phone Screen Candidates
Before conducting your main job interviews, it’s important to schedule short phone interviews with your top candidates. These can be anywhere from five to 30 minutes, and your goal is simply to determine whether you want to proceed to a longer in-person interview.
As with any other step in the hiring process, phone screens are a time when illegal interview questions can accidentally slip. To avoid this, keep the conversation focused on the candidate’s resume, including their work history and qualifications. Remember that even seemingly relevant questions like “When did you graduate from college?” can be unlawful because of their implication (age bias). Be sure to check out our top phone screen questions to help you come up with ideas.
4. Conduct a Structured Interview
When it comes time for your main job interviews, it is recommended that you conduct structured interviews. A structured interview is when you ask the same questions to every candidate. As long as you’re careful in selecting your questions, this method is nearly airtight for mitigating liability.
Because the conversation can vary depending on a candidate’s response, you’ll also want to have a list of follow-up questions prepared, which you can roughly emulate for each candidate. As a result, you’ll be able to more easily compare and rank candidates, based on their responses to the questions.
5. Keep Notes
Keeping and saving notes ensures you’ll have a clear justification for your hiring decision. In the event you’re charged with making a biased decision or asking an illegal interview question, your notes will serve as your best defense. Have your list of questions handy, and write (or type) the candidate’s responses to each question.
Another primary reason for notes is to aid your memory when it comes time to compare candidates and make a hiring decision. With ZipRecruiter you can save notes directly on the candidate’s application, so you have all the important information organized in one place. This is especially helpful when you have multiple hiring managers reviewing candidates.
For more in-depth guidance on hiring, check out our guide to hiring new employees.
What to Do if Candidates Share Protected Information
People overshare these days—on social media, in line at the grocery store, and during interviews, too—especially when they are nervous and have a rush of adrenaline.
If a candidate accidentally says something like, “Well, I beat breast cancer last year” or “I’m having some problems paying off my debt, which is why I want a new job,” you should follow these three steps:
- Pause in your answer to them.
- Make solid eye contact to ensure your point will get across if the interview is in person.
- Say something like, “Let’s stick to the set of questions I have here; we are short on time” and move right to the next question.
If the candidate goes there again, you can be firmer 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 the oversharing lane, it is advised that you end the interview as politely as possible. This indicates they aren’t listening or are looking for you to open an illegal can of worms. At worst, they could be a lawsuit seeker.
Implications for Asking Illegal Interview Questions
The most obvious drawback of asking illegal interview questions is legal trouble. Applicants and employees who think they’ve been discriminated against can file a claim with the EEOC. The EEOC will investigate the claim. Even if it decides against bringing a civil rights action against your company, once the EEOC has conducted its investigation, the applicant or employee is free to file a civil lawsuit.
In 2021, the most recent year for recording, the EEOC filed over 60,000 charges against companies for discrimination against applicants and employees. This number does not include any complaints filed by state or local agencies. The number of charges is also down by about half from a decade earlier.
Another, less obvious implication, is loss of reputation. Everyone talks, and many people overshare online. If an applicant was asked an illegal question during an interview with your company, they may post about it on social media or business websites. If this happens frequently enough, your company could gain a poor reputation, leading to fewer applicants.
Bottom Line
Illegal interview questions can become a legal headache that could potentially lead to a discrimination lawsuit. We have provided a list of illegal interview questions you should avoid based on protected classes—age, disability, gender or sexual orientation, marital or family status, race or ethnicity, and religion.
Implementing a structured hiring process will keep your conversations on-point from the very beginning. It can also help you make better hiring decisions because you can more easily rank candidates based on their responses to the interview questions.
