Some topics should be avoided to mitigate legal risk and create a fair process

The interview questions you should never ask

Companies need to choose the questions they ask candidates carefully during an interview. Not all questions are okay to ask, and there are some topics that surprise even seasoned interviewers.

When interview questions cross legal and ethical boundaries, companies can be exposted to potential discrimination claims and legal liability. Employers must understand what they can and cannot ask to ensure compliance with federal and state employment laws and create a fair hiring process. It’s also important to make sure everyone on the interview team understands the importance of asking the right questions and avoiding the wrong ones.

Questions to Avoid and Their Acceptable Alternatives

Below is a list of common inappropriate questions and suggested ways to frame job-related inquiries:

• Inappropriate Question: What year did you graduate from high school or college?
  • Why It’s Problematic: Reveals age, which is a protected characteristic under the Age Discrimination in Employment Act (ADEA).
  • Acceptable Alternative: Can you tell me about your educational journey?

• Inappropriate Question: Are you married?
  • Why It’s Problematic: Marital status is not job-related and could lead to discrimination claims.
  • Acceptable Alternative: Are you willing to travel for work if required?

• Inappropriate Question: Do you have children or plan to?
  • Why It’s Problematic: Could lead to discrimination based on family status or gender.
  • Acceptable Alternative: Are you able to meet the scheduling requirements of the job?

• Inappropriate Question: What country are you from?
  • Why It’s Problematic: National origin discrimination is prohibited under the Civil Rights Act.
  • Acceptable Alternative: Are you legally authorized to work in the United States?

• Inappropriate Question: What is your native language?
  • Why It’s Problematic: Could suggest discrimination based on national origin.
  • Acceptable Alternative: This role requires fluency in [language]; are you proficient?

• Inappropriate Question: Do you have any disabilities?
  • Why It’s Problematic: The Americans with Disabilities Act (ADA) prohibits inquiries about disabilities before making a job offer.
  • Acceptable Alternative: This job requires lifting 50 lbs. and standing for long periods. Can you perform these tasks with or without accommodation?

• Inappropriate Question: What religion do you practice?
  • Why It’s Problematic: Religion is a protected characteristic under Title VII of the Civil Rights Act.
  • Acceptable Alternative: Are you available to work the required schedule?

• Inappropriate Question: Have you ever been arrested?
  • Why It’s Problematic: Arrest records may not indicate guilt and can lead to racial discrimination.
  • Acceptable Alternative: Some positions require background checks. Are you willing to undergo one if offered the position?

• Inappropriate Question: Do you drink socially?
  • Why It’s Problematic: Could lead to discrimination claims under the ADA, as alcoholism is considered a disability.
  • Acceptable Alternative: This job may require client-facing events. Are you comfortable attending professional networking functions?

• Inappropriate Question: How much do you weigh?
  • Why It’s Problematic: Not job-related and could lead to discrimination claims based on appearance or disability.
  • Acceptable Alternative: This role involves physical tasks such as lifting. Are you able to perform the required duties?

Topics that should be avoided

Interviewers need to keep the questions focused on an applicants qualifications as it relates to the job. If the interviewer is unsure about a question, it’s probably best to avoid the topic. Here are few items that should always be avoided during an interview:

• Political affiliations or beliefs.
• Military discharge status.
• Salary history (in some states, it is illegal to ask about previous earnings).
• Membership in clubs or social organizations (unless directly related to the job).
• Housing situation (e.g., "Do you rent or own your home?").
• Credit history (unless relevant to the job, and only in compliance with local laws).
• Genetic information or family medical history.

General Guidelines for Interview Questions

When preparing for an interview, employers should focus on job-related questions that evaluate a candidate’s ability to perform the role. Questions should be structured around the skills, experience, and competencies necessary for the position.

To avoid legal pitfalls, employers should:

• Stick to questions that assess professional qualifications, experience, and work ethic.
• Avoid inquiries that touch on protected characteristics under federal and state laws.
• Be mindful that even casual or conversational questions can be problematic if they pertain to personal attributes unrelated to the job.

The Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employment discrimination based on race, color, religion, sex, national origin, age (40 or older), disability, and genetic information. Many states also have additional protections regarding sexual orientation, gender identity, marital status, and more.

Best Practices for a Legally Compliant Interview Process

To ensure a fair and legally sound interview process, employers should:

1. Standardize Interview Questions: Use the same set of questions for all candidates to avoid bias.
2. Train Interviewers: Educate hiring managers on lawful and unlawful questions.
3. Focus on Job Requirements: Keep questions relevant to job duties and necessary skills.
4. Use Structured Interviews: Rely on a consistent format to evaluate candidates objectively.
5. Document the Process: Keep records of interview questions and responses to demonstrate a fair hiring process.

When companies keep questions focused on an applicant’s ability to do the job, they reinforce a fair hiring process that is focused on selecting the best candidate for the role.