Illegal Job Interview Questions: What to Ask and How to Answer
Recently, my business partner and I were preparing to interview a prospective new employee for my brick-and-mortar business. While I have interviewed many prospective workers over the years, this was my partner's first time interviewing from the other side of the desk.
The prospective employee had already disclosed to us that she had a disabled child. As my partner and I discussed what information we wanted to cover in the interview, he mentioned that he wanted to ask her whether she would be able to manage the work schedule given her child's needs.
"You can't ask that!" I told him.
"Why not?" he asked. "She already gave us the information."
I explained that family matters are a protected status, meaning that they cannot be used as employment considerations. While these employment laws regarding allowable interview questions might make little sense to small business owners and managers--and even some workers--they ultimately serve to protect all parties from unintentionally discriminating against an employee.
So, no, you can't even mention the obvious in an interview: Things that job candidates have told you and things that one cannot hide in an interview, like physical characteristics (age or pregnancy) or even a foreign accent. While these factors may come into play--for example, whether a worker is legally qualified to work at the job because of her age or immigration status or whether a new baby will force her to take time off immediately--some topics are simply off limits during the interview.
This guide will address issues that should not come up in a job interview, from both the perspective of an employer and a prospective employee.
Off-Limits: Children and Marital Status
As my business partner articulated, many employers have concerns about hiring people with children because it is inevitable that these workers will need to take time off because of colds, school events, and the other incidentals that come with parenthood. While this is a valid concern for employers--especially when you rely on your employee for day-to-day operations, it is illegal to ask a prospective employee whether or not he or she has children. It is, however, acceptable to ask the employee whether they can meet the basic requirements of the job, for example, working from 8 a.m. to 5 p.m. and occasionally putting in some overtime for special projects.
Likewise, it is not legal to ask an employee if he or she is married. Although marital status and obligations can play a role in an employee's work availability, it is up to the worker to determine if they can meet the requirements of the job and feel comfortable with the pay offered. If issues with scheduling or pay come up after a hire, then the employee and employer can determine the next steps, but it is not an issue for the interview.
So say you are interviewing for a job and your interviewer asks you if you're married and have any kids? Saying "You can't ask me that! That's an illegal interview question" is not the best way to get the job, even if the employer should have known better.
At this point, you have several options: You could simply answer the question politely and then take the job if you are offered it, knowing you may be opening yourself up to employment discrimination. If you are not hired, you could report the employer to your state Department of Labor. You could also politely decline to answer the question, stating that you do not believe it is relevant to your credentials. Likewise, you could ask the employer a question back, for example, "Why do you ask?" This might get to the real question at hand, which is usually "Can you do the job and get to work on time?"
Nationality and Language
Although employers want to protect themselves from hiring workers who are not in the country legally, it is not permissible to ask a worker where they are from if something like their name, accent, or appearance leads you to believe that they are from another country. If you are concerned about legal status, it is best to ask all workers whether they are legally allowed to work in the United States. Likewise, it is acceptable to ask prospective employees what languages they speak and how well they speak them, but this is usually only advisable if this is a qualification for the job. For example, if you are an employer looking for a telephone customer service representative and require someone who speaks clear, fluent English, it may be permissible to screen out employees for this position who speak very little English. However, if the position does not require extensive English skills, then it may be best not to ask this question. However, you can require that employees speak certain languages if the job requires it. For example, if your business works extensively with persons of Hispanic ethnicity, then you may ask prospective employees if they are bilingual in both English and Spanish because language skills are an important part of the job.
If you are a worker from another country whose first language is not English, yet you are fluent in English and have the skills necessary to do the job, it may be best to decline to answer questions about national origin and your first language and instead, display your fluency in your interview. Hopefully, the employer will see that you fit the qualifications for the job just by talking to you.
Religion and Political Beliefs
Like language and country of origin, religion and political beliefs can be a tricky subject for employers in some cases--particularly if the business is related to politics or religion. For example, I own a business with the word "Christian" in its name. Thus, for some employees, being a Christian is necessary for employment, because you could not fulfill the job requirements if you were another religion. However, for a position for which I was recently interviewing, an administrative position, being a Christian was not necessary. In this case, to find the best candidate and ensure the spirit of employment discrimination laws, I chose to write in the job description "must feel comfortable working in a Christian environment." In other words, if a Muslim, Hindu, or atheist felt comfortable working for a Christian business, then they get the same consideration as every other candidate; their personal beliefs do not relate to the job. If you are asked about religion, consider first the nature of the business. If you are applying for a faith-based organization, such questions may not be illegal. In secular business, however, they are usually irrelevant and not permitted under employment discrimination laws.
The same holds true for political views. If a political organization is looking for a new employee, then someone who is an active member of the opposing party would probably not be a good match for the organization if the job requires promoting a specific political agenda. Thus, in such cases, it is not likely that politics would be off the table during an interview. However, for non-political businesses, including nonprofit organizations, politics are usually off the table during interviews--for example, if you are interviewing at a law firm or restaurant. If the issue of politics comes up, this may be a question best left unanswered, unless you are unsure about whether it applies to the job, which may be the case if you are applying for a job with a charitable group or a public relations position or other job that would put you in the public spotlight. In such cases, it may be prudent to ask your employer to clarify the way in which politics apply to the specific job to which you are applying.