Judy Lofurno, Sr. HR Business Partner at Xenium HR, contributed to this post.
Interviewing candidates while complying with current employment law can be a tricky business. Read on below for a number of illegal interview questions, followed by explanations of the illegality of each question and our recommendations for alternate questions that get at the information you’re seeking without prompting a candidate to divulge information that could be misconstrued as discriminatory.
1. What year did you graduate high school? How old are you?
Why isn’t this okay to ask? Asking someone what year they graduated high school could ultimately encourage them to give away their age.
What can I ask instead? Find ways to avoid asking their specific age or any question you could infer their age from. Ask instead: What schools have you attended? Do you have a high school degree? If the job requires employees who are over the age of 18, ask Are you over age 18?
2. What is your marital status? / Do you have children? / What are your childcare arrangements?
Why isn’t this okay to ask? Asking these questions could be seen as probing for benefits coverage information. It could also be seen as discovering whether this person will have outside demands that interfere with the position. And regardless, family status and marital status are never job-related and shouldn’t be asked at all.
What can I ask instead? Can you arrive to work on time? Are you able to do the job?
3. Do you have an arrest record?
Why isn’t this okay to ask? Relatively recent legislation – the Oregon Ban the Box Law and Portland Ban the Box Law limit how you may inquire about this kind of information.
What can I ask instead? Outside the City of Portland in a face-to-face interview you could tell a candidate “We do background checking. Is there anything you would like to discuss with us in advance?”
Within the city of Portland you cannot ask that question until after you’ve selected the candidate, given them a conditional job offer, and once they’ve accepted the conditional offer then you can talk about the background check. It’s often recommended that employers set a start date for a new employee for a date after background check comes back and has had time to be reviewed.
4. What’s your maiden name?
Why isn’t this okay to ask? This could prompt an employee to disclose their marital status.
What can I ask instead? This may be information you need – perhaps you’re screening references for a candidate with over 20 years’ worth of experience, and you want to ensure that those references will recognize the candidate’s current name when you speak with them over the phone. Ask the candidate, Have you been known by any other name? Will your references know you by the name you currently go by?
5. I see you don’t have an arm, are you able to do X, Y, and Z that this job requires? / Are you physically fit and strong? / Do you have any health problems?
Why isn’t this okay to ask? You cannot ask about disabilities or other health abilities in an interview. You must stick to the job description and simply ask if they can perform the functions.
What can I ask instead? Can you perform the essential job functions with or without a reasonable accommodation? Are there any job functions you have concerns about?
Other tips? For a position with physical motion requirements, a way to ensure candidates are capable of performing the duties is to require every applicant to have a physical done. Require the same exact exam done in advance for each person. You may consider having a doctor onsite, or having a form prepared with set questions for their own doctor and an agreement to cover the cost of the exam. Ensure that the exam is completely job related and focuses on the machines and functions required of them in the position.
6. What do you do on Sundays? / Your name sounds like X ethnicity, is it?
Why isn’t this okay to ask? Steer clear of asking about religious groups or inferring anything about a person based off of their name.
What can I ask instead? This is the position schedule, are you able to work those hours?
7. Please include a photo of yourself in your application.
Why isn’t this okay to request? You are opening yourself up to the possibility of observing visual things about this person that could be seen as swaying your decision one way or another one. For example, a photo could show someone’s ethnicity, a physical disability, imply their religion, and more.
What can I ask instead? Don’t request a photo at all. Take photos of employees once they are hired.
8. Do you smoke?
Why isn’t this okay to ask? Could be seen as finding out benefits related information.
What can I ask instead? This is our policy, could you adhere to it?
9. These next few questions will be off the record.
Why isn’t this okay to say? Everything in an interview is on the record! Never say this in an interview.
10. What clubs or organizations do you belong to?
Why isn’t this okay to ask? This is a very broad question and could lead an applicant to wonder if they’re being asked about their religion or social life.
What can I ask instead? What professional or trade organizations do you belong to that you would consider relevance to your performance and development within this job?
Here’s what to keep in mind regarding job interviews and avoiding the types of questions that could open your company up to risk:
- Focus on what’s related to the job requirements.
- Don’t ask anything too personal.
- If you ask behavioral or situational questions, pose them in the workplace. Reference their resume and ask specifically about previous jobs and how those experiences could be relevant to this new position.
- If your organization is affiliated with a protected group, like a religious organization, still be sure to avoid questions about a candidate’s alignment with that class. Say, “Tell me what you know about the organization,” or “What made you interested in us?” to ensure someone is culturally aligned.
- Know what the discrimination protected classes are and make sure your interview questions don’t inquire about an applicant’s status within any of those classes.
- Take time and prepare for the interview. Maintain consistency by asking the same basic questions when interviewing candidates for the same position. Conversations may take different turns, but ensure you ask the same core questions so you can effectively compare candidates’ responses.
- Plan out a list of questions in advance to keep yourself on track and avoid asking any illegal questions, like the examples above.
- Remember that your goal as an interviewer is to learn about the person, see if they’re a company culture fit and if they have the technical skills required for the job. Ask thought-provoking and complicated questions, but don’t ask trick questions or purposefully try to trip someone up.