I was recently at a law association conference, speaking on the topic of best practices in hiring and interview questions. Just as the presentation concluded, and satisfied that my content had been well received, a respected attorney I’d met on several prior occasions approached me to ask a final question:
“I ask every candidate who interviews with me if they’d been hit as a child. Why can’t I ask that?”
When my state of shock subsided, I responded, “How does that relate to success on the job?” According to employment law, interview questions are unacceptable if they don’t relate to the job at hand.
He replied, “I like to see how people react to being put on the spot.”
Realizing that I, too, had just fallen victim to his “put them on the spot” game, I told the man that there are plenty of perfectly legal ways to find out whether someone can think on their feet that don’t involve stories of child abuse. I half-jokingly told him to call me when he gets served his first lawsuit, and that we’d get him set up with Hireology right away.
While this was certainly an extreme example of bad interviewing, it dawned on me that illegal interview questions are really quite common. In fact, most clients we’ve spoken with over the past several years ask at least one illegal interview question — or a question that solicits personal information that could be considered discriminatory — as a regular practice in their hiring process.
In hopes of helping you prevent a $40 million lawsuit (like the one famously paid by Abercrombie for religious discrimination), we called out the 5 most commonly asked interview questions that could result in charges of discrimination, an investigation by the U.S. Equal Employment Opportunity Commission (EEOC), and/or potentially a lawsuit below. And for a more exhaustive list of illegal interview questions to avoid, click here.
DISCLAIMER: This article is for informational purposes only and is not intended as legal or HR advice. If you have specific legal questions, you should consult your attorney, as appropriate.
1. When did you graduate from college?
While interview questions like this get asked during phone screens across the globe, it is technically an illegal interview question because it can often infer age. The Age Discrimination Act prevents employment discrimination based on age. Instead, employers can ask questions like, “Do you have a college degree?” Or, “Are you over the age of 18?”
2. Where did you grow up?
It’s illegal to discriminate based on national origin. Because of that, asking interview questions like this can, in many cases, lead to sensitive territory. To avoid this risk, ask “Are you legally eligible for employment in the US?” instead.
3. How many kids do you have?
Many employers ask this because they’re concerned about absenteeism. However, legally, an employer can not refuse to employ someone based on marital status, family status, or sexual orientation, and this question alludes to all of the above. An acceptable way to ask about absenteeism would be: “Do you have any commitments that could prevent you from meeting the work schedule we discussed?”
4. Have you ever been arrested?
Nope, not allowed. Instead, ask “Have you ever been convicted of a crime?” The difference between these questions looks to be minuscule, but one is legal and one is not. It’s better to be safe than sorry in this case.
5. Do you have a car?
Employers often ask this question in addition to, “How long is your commute?”, when a candidate will need to be able to transport themselves frequently as part of the job. While on rare occasions, a car is actually necessary in order to do the job, most of the time the employer is really concerned with attendance. To avoid questions that may allude to a person’s current or past assets, ask questions like “Is there anything that could interfere with your ability to get to our clients’ office every Monday?”
Employment-related lawsuits are on the rise, and often the only way to be sure you’re protecting your business is to create interview questions and scripts for your staff to follow. Hireology does this for you by ensuring that the phone screen and interview questions approved by your HR leaders are available to hiring managers to follow during their time with applicants.
Be sure your interview questions relate to the job at hand, and remember to ask the same questions to every candidate, every time to avoid legal scrutiny. We’ve compiled a long list of questions to avoid asking in an interview, so give it a read if you’re looking for more interview guidance. And you want to see how Hireology can help you in the interview process and beyond, request a demo here.
Looking for inspiration for interview questions you should ask?
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