By Rachel Gillett
You may think asking a job candidate whether they have kids is a totally innocuous icebreaker, but it's one of many topics best left alone during a job interview.
While very few specific interview questions are by themselves illegal to ask, Laura Davis, an associate professor with the Department of Finance and Legal Studies at Bloomsburg University of Pennsylvania, explains in the Journal of Employment and Labor Law that some questions may be used as evidence of discrimination and, so, are ill-advised to ask.
"Since it is reasonable to assume that all questions in an interview are asked for some purpose and that hiring decisions are made on the basis of the answers given, any question asked during the interview can be used as circumstantial evidence of a prohibited discriminatory motive," she says.
In the US, certain personal characteristics are part of a protected class and can't be targeted for
discrimination thanks to certain federal or state antidiscrimination laws.
"Even without any intentional ill will, employers who have knowledge concerning the protected class status of applicants may make biased assumptions about their capabilities or work habits," Davis says.
She suggests the best approach to take while conducting an interview is focusing on the specific criteria needed to perform the job. She says this will help you find the most able employees and protect you from being found to be discriminatory.
Here are some topics you're better off not bringing to the table:
Steer clear of questions about the candidate's marital status or children.
Some states, like New York, explicitly ban employers from discriminating against applicants based on their marital status.
While Title VII, the portion of the federal Civil Rights Act that prohibits employment discrimination, does not bar employers from asking for information relating to protected-class status, it does ban discriminatory employment decisions made on the basis of this information.
Because of this, the Equal Employment Opportunity Commission (EEOC) — which brings lawsuits against employers on behalf of workers — advises employers against asking about marital status or number of children because these questions are often used to discriminate against female employees (and discriminating against women is illegal).
Questions that may be regarded as evidence of intent to discriminate include:
"Are you pregnant?"
"Are you married?"
"Do you plan to get married?"
"How many kids do you have?"
"How old are your kids?"
"Do you plan to have kids?"
"What are your child-care arrangements?"
"What does your spouse do?"
"What's your spouse's name?"
Physical or mental impairment
The American Disabilities Act bars employers from asking interview questions that are likely to reveal the existence of a disability before making a job offer.
These questions could include:
"Do you have a heart condition?"
"Do you have asthma or any other difficulties breathing?"
"Do you have a disability that would interfere with your ability to perform the job?"
"How many days were you sick last year?"
"Have you ever filed for workers' compensation? Have you ever been injured on the job?"
"Have you ever been treated for mental-health problems?"
"What prescription drugs are you currently taking?"
Arrest and conviction
Some states explicitly prohibit employers from asking about applicants' criminal history unless the crime is directly related to the job they are interviewing for.
In states where the question is not explicitly prohibited, questions about arrests and convictions can be unlawful if they disproportionately eliminate minority applicants and the practice is unrelated to successful job performance, according to the EEOC.
Some states explicitly ban asking applicants about their age, and in states that don't, the federal Age Discrimination in Employment Act of 1967 prohibits employers from age-based discrimination toward anyone over the age of 40. Asking about someone's age may give the impression of discrimination.
A better question to ask than, "How old are you?" or, "What year did you graduate?" might be, "How much experience do you have with this aspect of the job?"
The National Labor Relations Act was created to protect workers' right to join unions and to prohibit employers from unfairly discouraging workers from joining a union or negotiating a union contract, Davis explains.
While questioning a job applicant about union membership during a job interview may not be a violation of the law, the US Court of Appeals for the Ninth Circuit found that this combined with a printed application form that also inquires about union membership is "inherently" coercive and a violation.
Requests for genetic information
The Genetic Information Nondiscrimination Act of 2008 makes it illegal to discriminate against employees or job applicants because of genetic information and prohibits employers from requesting genetic information from job applicants or about a family member.
Race, color, national origin, citizenship, and immigration status
Discrimination based on national origin, race, or color is illegal under the Civil Rights Act of 1964. And discrimination with respect to hiring, firing, or recruitment based on an individual's citizenship or immigration status is outlawed by the federal Immigration Reform and Control Act of 1986.
While asking, "Where is your name from?" may seem harmless, it could be used as circumstantial evidence of racial discrimination.
And although asking a question like, "What languages do you speak?" could be useful in a job interview, asking, "What's your first language?" could also be construed as asking about a candidate's nation of origin.
The EEOC also recommends not conducting employment-eligibility verification until after an offer to hire has been made to avoid claims of illegal discrimination.
Asking about religion can get employers in hot water because religious discrimination is illegal in the US thanks to the Civil Rights Act.
Though the federal government doesn't specifically forbid questions about religion, they could be used as evidence of intent to discriminate. Questions to avoid include:
"What's your religious affiliation?"
"Do you believe in God?"
"Where do you worship?"
"What days do you worship?"
"What religious holidays do you celebrate?"
"Can I get a reference from your rabbi?"
The exception to the rule is religious organizations. According to the EEOC, an employer whose purpose and character is primarily religious is permitted to lean towards hiring persons of the same religion.
Requests to take a polygraph test
The federal Employee Polygraph Protection Act of 1988 prohibits most private employers from requiring or requesting any employee or job applicant to take a lie-detector test. It also bars employers from discharging, disciplining, or discriminating against an employee or job applicant for refusing to take such a test.