When interviewing prospective employees, small business owners should avoid asking the following nine “no-no’s” to prevent violating state and federal discrimination laws. Business owners, however, MAY ask questions that are directly related to the needs of the job.
Illegal Job Interview Questions
1. Asking About Age
NO: How old are you?
OK: How long have you been working in this industry?
WHY: The Age Discrimination in Employment Act of 1967 (ADEA) protects employees over 40 years of age, but an employer can ask if the person meet the minimum legal working age for certain occupations.
2. Asking About Race, Color, or National Origin
NO: When did you learn to speak English?
OK: What languages can you read, speak, or write fluently? (related to job requirements)
WHY: Title VII of the Civil Rights Act of 1964 does not allow discrimination on the basis of race, color, or national origin. The Immigration and National Act (INA), as amended by the Immigration Reform and Control Act (IRCA), prevents employers from not hiring someone based on their citizenship.
3. Asking About Sexual Orientation
NO: When did you and your husband/wife move here?
OK: What brings you to this part of the world?
WHY: Title VII of the Civil Rights Act of 1964 does not allow discrimination on the basis of sex or sexual orientation.
4. Asking About an Arrest and Conviction Record
NO: Have you ever been arrested?
OK: Do you anticipate difficulties getting security clearance needed for this position?
WHY: Title VII of the Civil Rights Act of 1964 does not allow employers to consider someone’s arrest and conviction records in employment decisions. An arrest does not necessarily establish that criminal conduct occurred and may not be related to whether the person can perform the job.
5. Asking About Religion
NO: Are you looking forward to celebrating Easter/Christmas?
OK: Are you available to work over the holidays?
WHY: Title VII of the Civil Rights Act of 1964 does not allow discrimination on the basis of religion.
6. Asking About Marital or Pregnancy Status
NO: Do you have kids?
OK: What hours are you available to work?
WHY: The Pregnancy Discrimination Act does not allow employers to ask about a woman’s current or future plans to start a family.
7. Asking About Military Discharge
NO: What type of military discharge did you receive?
OK: What kind of training or experience did you receive while in the military?
WHY: The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires military service members be reemployed upon discharge from their service. Previous, current, or future military obligations cannot be a reason to not hire someone.
8. Asking About Disability or Illness
NO: Have you had to take a lot of sick leave in the past?
OK: Are you able to perform this job with or without reasonable accommodations?
WHY: The Family and Medical Leave Act (FMLA) allows employees to take unpaid leave to care of family or medical needs. Similarly, the Americans with Disabilities Act (ADA) does not allow employers to ask about a potential employee’s past illnesses, including drinking habits since the person may be a recovering alcoholic. People currently using illegal drugs, however, are not protected.
9. Asking About Debt or Credit History
NO: What is your credit score?
OK: Since this position requires handling money, would you like to explain anything that might show up in your credit check?
WHY: The Fair Credit Reporting Act (FCRA) requires employers get your consent before pulling up a prospective employee’s credit report. If a poor credit history is the reason for not hiring someone, the employer must officially notify the interviewee.