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Is Your Interview Legal? Some Questions You Should Never Ask

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April 04, 2019


During the hiring process you will be interviewing several candidates for a specific position. You obviously are looking to make sure they are the best possible fit for your company. Asking the right questions during this process will help you weed out those that are not fit for the role, do not qualify based on work history and several other factors. How do you find the right candidate and what questions do you ask to accomplish this task?

Finding the right candidate is hard. You can ask dozens of behavior based and performance related questions which could still lead to the incorrect candidate. During this interviewing process, we wall want to ask the questions that help us find that right candidate. During this process of review, you may end asking some personal questions. Unfortunately, some of the questions that get asked are, in fact, illegal and can get you into trouble under anti-discrimination statutes.

Asking The Wrong Questions

Here are twelve questions you should never ask:

  1. Have you ever been arrested? You can ask if they have been convicted, but not arrested. The reason is simple: Legally, an arrest is any time you are in the "custody" of a police officer, which means any time you are not free to leave. A routine traffic stop counts as an arrest, whether or not the officer writes a ticket. A lot of people mistakenly think you're only under arrest if you go to jail. So, the vast majority of arrests don't involve the person committing a crime or even being under suspicion of one.
  2. Are you married? No, it is not legal to ask about somebody's martial status during an interview. It may be tempting to, especially for jobs that involve a lot of travel or relocation, but it is never relevant to the person's job. It is also illegal to ask questions about your spouse, including their job, etc.
  3. Do you have children? Also an illegal question. It's discrimination not to hire people with young kids because they may take time off work. A thin line, too, is to specifically ask women about childcare needs or evening availability.
  4. How old are you? Unless you are dealing with teenagers or need employees to be at least 21, it is illegal to ask them their age or anything which might indicate their age.
  5. Can you work Saturday and Sunday? Believe it or not, it is risky to specifically ask this. Instead, you should ask them what shifts they are available to work. Asking about specific days can lead to accusations of religious discrimination, and you are not allowed to ask about that. You also should not ask at the interview stage about religious holidays.
  6. Do you have a car? Unless the job specifically requires the candidate to own a vehicle, you cannot ask if they have a car. You can ask if they have a reliable way of getting to work, but not whether they have a car.
  7. Are you a U.S. citizen? Nope, can't ask this one either, unless you are hiring for a job which requires a security clearance, in which case it's handled them. You can ask if they are able to work in the United States (and should).
  8. Do you have a disability? Instead, you should ask if they can perform the functions of the job. Some disabilities are visible, but you should still consider the candidate if they can handle the job duties.
  9. What country are you from? It's easy to accidentally ask this if the person has an accent, but it boils down to the question about citizenship. Legal immigrants and naturalized citizens should have the same work opportunities as native-born Americans.
  10. Is English your first language? Another one that leads to national origin. Instead, ask if they speak any other languages. If a specific language proficiency is required for the job, such as Spanish, then you should definitely ask about it.
  11. Do you drink alcohol? When was the last time you used drugs? You can ask about current drug use, but not past use. Also, you cannot ask about an employee's drinking habits because recovering alcoholics are protected under the ADA.
  12. What kind of discharge did you get from the military? Nope. You can't ask this one either. Again, this comes back to ADA protection: You can't ask this because it might reveal medical history. You can, and should, ask veterans about their training and education while they served, though.

The best way to avoid illegal interview questions is to carefully prepare a list and have somebody else check over the list for compliance. If the candidate volunteers illegal information, such as national origin, you should try to ignore it and change the subject. If you need more information about compliance in HR issues, including how to conduct interviews without falling into common traps, contact Lorman Education Services today.

Sources:
https://www.nolo.com/legal-encyclopedia/justifies-arrest-probable-cause.html
https://ocs.yale.edu/get-prepared/illegal-interview-questions


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