When you’re hiring, weeding through applicants for the right person is often a challenging task. You want someone that fits in and can do the job, but you need to be aware of questions that are illegal or unethical and can land you in hot water during the interview process.
Federal laws make it illegal for an employer to discriminate against a job applicant because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. Be sure to avoid personal questions at the beginning of an interview when you’re making small talk and setting the candidate at ease. Understanding where to draw the line is important in order to void accusations of unfair hiring practices or lawsuits. Here are a few examples of questions to avoid.
Marital Status and Parenthood
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“Are you married?”
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“Do you have children?”
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“Are you pregnant?
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“Do you plan on having a family?”
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“What does your spouse do?”
Any questions relating to marital status or parenthood should be avoided during the hiring process.
Age
The law prohibits treating an applicant less favorably because of their age (40 and over). While you can’t ask age-related questions such as, “What year did you graduate high school?,” employers may ask applicants if they meet the minimum age requirement if there is one or how many years of relevant work experience they have.
Citizenship or Origin
Questions such as, “Where were you born?” or “What is your background?” may seem like icebreakers, but they are prohibited during the hiring process. You can ask an applicant if they are authorized to work in the United States or if they can show proof if they are selected for hire. You may also ask if they can speak and write in English (or any other language that relates to the job), but not if it’s their first language.
Disabilities and Medical Concerns
Employers are not allowed to ask questions about disabilities until after a conditional job offer is made. Do not ask questions regarding an applicant’s:
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physical or mental impairment or how they became disabled
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medication use
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prior workers’ compensation history
If the job position requires certain physical abilities, you can’t ask if the applicant is in good health, has any health issues, or questions pertaining to past illnesses. But there are some questions regarding physical abilities that may be asked, as long as the physical ability is deemed a bona fide requirement of the job. You also can’t ask for information pertaining to their height, weight, or any details regarding physical or mental limitations. However, you may ask an applicant if they can perform the job, with or without a reasonable accommodation.
Avoid Discrimination Practices
You want to be fair during the hiring process and avoid asking applicants for personal information that is protected by law. If the candidate starts talking about their children, spouse, club or religious affiliations, or other sensitive or taboo topics, it’s best to politely bring the conversation back to the subject of work. Keep the questions relevant to the job and the candidate’s ability to perform a specific task associated with the job. Otherwise, if you ask the wrong questions or get too personal, you may face some unfavorable consequences.
Through each aspect of the recruiting, hiring, and employment stages, avoid questions and practices that discriminate or may appear to discriminate against any class of people. You also need to be sure your interview questions are the same for all candidates and that they strictly relate to the knowledge, skills, and abilities to successfully perform the job.
Small business owners can get helpful resources pertaining to equal opportunity employment through the Equal Employment Opportunity Commission (EEOC). You can also seek the services of an employment attorney to discuss specific concerns.