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Motivating Employees: HR tips for getting employees motivated and engaged with your company.

Illegal Interview Questions

Following are some of the more common illegal interview questions. While many HR and Recruiting staff know that these questions are illegal, many hiring managers do not. And while no one is going to arrest you for using these questions, you will find that there is a significant amount of legal risk (meaning someone can sue you for discrimination).  This is not an exhaustive list, just a list of the most common, especially in the technology industry:

  • Where were you born? While this question seems innocent enough on the surface, it could be used to gather information illegally about national origin. Although it may seem more relevant, hiring managers are also not allowed to ask “Are you a U.S. citizen?” Employers may ask whether you are authorized to work in the United States, but not specifically about citizenship. They may also ask for documents proving your authorization to work in the U.S. after you have been hired.
  • What is your native language? Again, the problem is that this question could be used to determine national origin. The employer can ask whether you know a particular language only if it is required for the job. For example, if job responsibilities include supporting Spanish-speaking customers, it’s fair to ask if you speak Spanish.
  • Are you married? Here’s another question that would seem innocent in most settings, but is not allowed in a job interview. Employers are not allowed to discriminate on the basis of marital status, so this question is not allowed.
  • Do you have children? Even though this sounds like a casual, innocent question, it is not allowed in a job interview. It’s covered by a general prohibition about discrimination over parental status.
  • Do you plan to get pregnant? This question is not legal. Employers used to ask this of women to avoid hiring someone that would go out on maternity leave. It is illegal to discriminate on the basis of gender and on the basis of pregnancy.
  • How old are you? Age discrimination is illegal, so this question is off limits. Some companies have tried to avoid hiring workers over a certain age for fear of higher insurance costs, the potential for more absences and for a general age bias. For this reason, employers are not supposed to ask what year you graduated from college, either, unless there is some job related reason for the question.
  • Do you observe Yom Kippur/Good Friday/Ramadan, etc.? Employers can’t discriminate on the basis of religion, so this question is illegal. Employers can ask whether you can work on holidays and weekends (if it’s a job requirement), but not about the observance of specific religious holidays.
  • Do you have a disability or chronic illness? It is illegal to use disability or medical information as a factor in hiring, so these questions are illegal. If the job would require some specific physical task, such as bending to install cables in walls, the employer can ask if you could perform those tasks with reasonable accommodation.
  • Are you in the National Guard? Although some managers may find it disruptive when employees leave for duty, it’s illegal to discriminate against someone because he or she belongs to the National Guard or a reserve unit.
  • Do you smoke or use alcohol? In general, employers can’t discriminate on the basis of the use of a legal products when the employee is not on the premises and not on the job.

Federal and state laws prohibit prospective employers from asking certain questions that are not related to the job they are hiring for. Questions should be job-related and not used to find out personal information.

In a nutshell, employers should not be asking about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, sexual preferences or age.

And while no one is going to arrest you for asking these questions, remember that there are less than honest attorney’s out there looking for reasons to sue and if they can send people to you that may smell like smoke or you say something they will have proof that you are asking these questions and you will find yourself on the bad side of a lawsuit.