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Taboo Topics: Illegal Interview Questions You Shouldn’t Ask Job Candidates

by Mark LeeJune 27, 2019 8:00 AM

It’s no surprise that it’ll take a lot of questions to determine whether a job candidate is the right fit for your company. However, you may not know that there are quite a few interview questions that can land your company in trouble. 

One example of this is the city of Cincinnati’s new Salary Equity Ordinance, a measure that passed in 2019 and will take effect in March 2020. At that time, it will be illegal for employers in Cincinnati to ask about a job candidate’s pay history. This measure impacts any step of the hiring process, ranging from job ads to employee interviews.

While Cincinnati employers must adjust to the Salary Equity Ordinance, there are many other types of questions that are disallowed from the interview process across the country. An illegal question can lead to a variety of consequences, including a discrimination lawsuit or an investigation by the U.S. Equal Employment Opportunity Commission (EEOC). This means you’ll want to brush up on which interview questions can lead to EEOC complaints.

HR managers after asking an illegal job interview question. 

Problematic Topics for Job Interviews

Some illegal interview inquiries are clear – you shouldn’t ask questions about a job candidate’s race or sexual identity. While those two topics pose apparent discrimination problems, others dangerous questions are not as apparent. 

Even questions asked with the best of intentions can be flagged as illegal. What you may see as an innocuous attempt at small talk can be interpreted as a topic that’s off limits. As a result, here are some topics that should be addressed carefully or avoided altogether.

National origin and citizenship

Any question regarding a candidates’ national origin can be an issue. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to base hiring decisions on a person’s citizenship or immigration status. Even a question asking about a candidate’s accent can be misconstrued as an attempt at discrimination. However, it’s acceptable to ask whether a candidate can legally work in the U.S., provide the required documentation if hired, and read, write, and speak English if required by the job.

Religion

If a question involves a candidate’s potential religion, you should probably leave it unsaid. Even roundabout questions like whether a candidate will need time off for religious holidays can be seen as non-job related and an attempt to discriminate against a person for his or her beliefs. According to the Yale Center for International and Professional Experience, the only employers allowed use religious affiliation as a basis for hiring are those “whose purpose and character is primarily religious.”

Pregnancy status

It’s not acceptable to ask about their pregnancy – even if the person interviewed is clearly pregnant. Not only does this violate set pregnancy discrimination laws, it can also potentially appear as gender discrimination since male candidates won’t have to answer the same questions. General questions about any future planned leave is acceptable if the question isn’t tied to the pregnancy. Also, feel free to ask other neutral job-related questions involving certain work responsibilities to see if the candidate can perform necessary tasks.

Marital status or number of children

Like pregnancy, you aren’t permitted to ask job candidates whether they’re married or have any children. Asking about these may lead an employer to discriminate against a candidate because they may need some time to take care of their current or future children. Instead, ask about specific job-related responsibilities to see if they can perform these tasks, such as travel requirements or set work hours.

Disability

The Americans with Disabilities Act (ADA) makes it illegal for employers to ask a range of questions that “are likely to reveal the existence of a disability before making a job offer.” That means any questions regarding how many sick days an applicant took in the past year or what drugs they take.

It’s also generally disallowed to ask if an applicant will need a reasonable accommodation for a job unless “the employer knows that an applicant has a disability, and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task” For example, the EEOC writes that it’s fine to ask about reasonable accommodation if the applicant voluntarily revealed his or her disability or there’s a clear visual sign, such as if the applicant uses a cane for a severe limp.

Age or genetic information

It’s only acceptable to ask about an applicant’s age if it’s directly tied to their job. For example, someone who works at a bar or some other age 21-plus environment will need to provide proof of their age. Even a question like when an applicant graduated from high school can be viewed as an attempt to identify a person’s age.

Arrest record

According to the EEOC, there is no federal law preventing employers from asking candidates about their criminal history – although “Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964.” It’s important to note that while there’s no federal law against asking about arrest records, many states ban the practice. As such, make sure to check your state’s laws before asking candidates about their criminal history.

Protect Your Company During the Hiring Process

Adding a new employee is an exciting step for any business, but it’s important to make sure that your business proceed with caution. Fortunately, there are many steps that you can take to avoid illegal interview questions. These include:

  • Establishing set interview questions for every candidate
  • Treat every candidate the same during the interview process
  • Take notes and document the results
  • Have more than one interviewer in the room

Another way to help your business is to hire a Professional Employer Organization that can not only oversee employee hiring and training, but also help you shoulder the administrative burden created by key HR functions. The GMS team can help you stay up to date on the latest rules and regulations while managing everything from your company’s payroll to employee benefits plans.

Whether you need HR services in Cincinnati or in some other location, GMS can help. Contact us today to talk to one of our experts about what we can do to help you protect your company now and prepare for the future.

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