Picture this: you've identified two ideal candidates for a job vacancy. They check all the boxes for qualifications and appear to be a perfect match for your company culture. During the final stage of the interview process, an employee asks Candidate A in passing about their marital status and whether they have children. This inquiry seemed harmless at the time, and you let it pass without much thought, however, when your company opts to hire Candidate B, you face a discrimination lawsuit from Candidate A.
It’s no surprise that it takes a lot of questions to determine whether a candidate is the right fit for your company. However, you may not know that there are quite a few interview questions and topics that can land your company in trouble. Under the U.S. Equal Employment Opportunity Commission (EEOC), the supposed conversational question on marital and family status in the above scenario was illegal - and Candidate A was within their rights to follow legal action.
Hiring is a stressful time for many reasons, and preparing your hiring team with the knowledge they need is one way to ensure compliance with federal laws and regulations.
Employment Laws And Regulations
Employment laws extend beyond federal regulations. There are several local, state, and city laws that your business is required to follow. One example of this is the city of Cincinnati’s Salary Equity Ordinance, a measure that took effect in March 2020. This ordinance made it illegal for employers in Cincinnati to ask about a job candidate’s pay history. California Labor Code 432.3, a state-wide law, similarly makes questions surrounding salary history illegal.
While this ordinance relates to Cincinnati employers, there are many state and city laws across the country, so it's crucial you fully understand your local regulations. Unlawful questioning can lead to various consequences, including discrimination lawsuits or an investigation by the EEOC, which can be frustrating and challenging to recover from.
Problematic Topics For Job Interviews
To safeguard your business, it’s crucial to understand illegal interview questions before you start the interview process. Typically, when you're ready to fill a vacant position, you're under time pressure, making it too late to meticulously review your questions for legal compliance. At this point, your business becomes vulnerable to potential lawsuits.
Some illegal interview inquiries are clear – you shouldn’t ask questions about a job candidate’s race or sexual identity. However, there are several less obvious questions that are also illegal. In addition, as with the marital and familial status example, what you may see as a casual attempt at small talk can be interpreted as a topic that’s off-limits. This means that beyond reviewing your prepared interview questions, it's crucial to equip your hiring team with guidance on safe conversational topics to avoid inadvertently broaching illegal subjects.
To help you get started, here are some topics to avoid or proceed with severe caution:
National origin and citizenship
Any question regarding a candidate’s 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 about a candidate’s accent could be interpreted as an attempt at discrimination. You are, however, allowed 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 needed.
Religion
Avoid questions that involve a candidate’s religion. 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 their beliefs.
Pregnancy status
Even if the person interviewed is pregnant, it’s illegal to ask about their pregnancy. Not only does this violate set pregnancy discrimination laws, but it can appear as gender discrimination since male candidates won’t have to answer the same questions. General questions about any future planned leave are acceptable if the question isn’t tied to pregnancy. Focus the interview on other neutral job-related questions involving work responsibilities to see if the candidate can perform the necessary tasks.
Disability
The Americans with Disabilities Act (ADA) makes it illegal for employers to ask 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 prescriptions they take.
In addition, do not ask if an applicant will need reasonable accommodation unless you know the candidate has a disability. According to the EEOC, it’s acceptable to ask about reasonable accommodations if the applicant voluntarily reveals their disability or there is 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, an individual working at a bar or other 21-plus environments will need proof of age. Even a question such as 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, no federal law prevents 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, such as California, Connecticut and Massachusetts, ban the practice. As such, check your state’s regulations 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 essential to ensure your business remains compliant throughout the process. 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 (PEO) that can not only oversee employee hiring and training but also help you shoulder the administrative burden created by crucial HR functions. The GMS team can help you stay current on the latest rules and regulations while managing everything from your company’s payroll to employee benefits plans.
Contact us today to learn more about what we can do to help you protect your company now and prepare for the future.