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It’s not unusual to start an interview with some pleasantries before diving into the nitty gritty of qualifications, experience and salary expectations. After all, those first impressions are important on both sides to establish rapport between the job candidate and employer.

It’s all too easy, however, for those conversations to cross the line into potentially unlawful discrimination. In fact, more than one in three jobseekers have indicated they were asked about their age during an interview, and more than half of older adults were asked if they were married — both questions that shouldn’t be asked during the hiring process.

Let’s look at state and federal employment regulations and review some common questions you shouldn’t ask in an interview, as well as alternative ways to get to know your job candidate a little better.

Discrimination Laws and Regulations

Under Title VII of the Civil Rights Act of 1964, it is unlawful for employers to discriminate in employment based on race, color, national origin, sex and religion. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for determining employment regulations and providing guidelines to help employers remain compliant with the law.

Some states also have their own employment discrimination laws that name additional covered characteristics. For example, the state of Wisconsin Fair Employment Law prohibits employers from discriminating against employee or applicants based on:

  • Age
  • Arrest and/or Conviction Record
  • Ancestry, Color, National Origin or Race
  • Creed
  • Disability
  • Genetic Testing
  • Honesty Testing
  • Marital Status
  • Military Service
  • Pregnancy or Childbirth
  • Sex or Sexual Orientation
  • Use or nonuse of lawful products off the employer's premises during nonworking hours

Hiring managers and business owners who are responsible for interviewing candidates need to be aware of regulations that prohibit certain questions from being asked. Failure to comply could result in a complaint being filed with EEOC and a potential lawsuit if the issues can’t be resolved.

Common Questions You Shouldn’t Ask

Don’t Ask: What year did you graduate high school?
This sounds innocent enough, but asking this question equates to asking a person his or her age. Since most people graduate high school when they’re 17 or 18 years of age, it’s easy for an interviewer to estimate a candidate’s age.

Alternate question:
You can ask if a candidate meets certain age requirements for duties or insurance purposes to ensure the candidate is eligible for the job. For example, it is appropriate to confirm age for duties such as serving alcohol or driving a company car. In those cases, it is best to simply state the requirement and ask if the candidate meets it. “The law requires that bartenders are 21 years old or older – do you meet this requirement?” Simple and directly to the point.

Don’t Ask: Are you married, and/or do you have children?
Who doesn’t love talking about his or her family? Often, however, this question can suggest that a candidate’s ability to do the job might be hindered by family obligations outside of work, or that plans for having children might lead to leave requests.

Alternate question:
If it is relevant for the job, you can ask if the applicant is available to work a specific shift, whether he or she is able and available to work occasional overtime, or if he or she is able to travel for the job. You will also want to avoid open ended conversation starters such as, “Tell me about yourself!” to avoid the applicant revealing characteristics that you cannot lawfully consider in your employment decisions.

Don’t Ask: Have you ever been injured on the job?
This question not only conflicts with employment discrimination laws, it also conflicts with the Americans with Disabilities Act (ADA). Employers are required to make reasonable accommodations for those with disabilities, both during the hiring process and once hired for the job.

Alternate question:
“Can you perform the essential functions of the job with or without reasonable accommodation?” It is very important to make sure that your job descriptions are ADA compliant and they spell out the essential functions of the job (what needs to be done rather than how it is typically accomplished) as well as any specific physical demands, work environment or skills required. A full of accounting of these elements helps determine if the job can be done with a reasonable accommodation for a disability.

Don’t Ask: What country are you from?
It can happen so easily in conversation, “I love your accent! Are you from Ireland?” but resist the temptation. It could lead to a discrimination claim based on the applicant’s culture or race. Likewise, questions about what part of the state or what neighborhood they’re from are also inappropriate.

Alternate question:
You may establish that the applicant has gone through proper measures to comply with the Immigration Reform and Control Act. Otherwise, the topic of a person’s nationality or country of origin is always off limits. Limit your questions to a simple, “Are you legally eligible to work in the U.S.?” and leave it at that.

Don’t ask: Where do you go to church? Or What organizations do you participate in outside of work?
Employers sometimes ask these questions to see if a candidate’s personal religious observations or activities might interfere with work schedules, but asking about religion is always off limits unless the hiring organization is a religious corporation, association, educational institution or society where religious beliefs are an occupational qualification.

Alternate question:
Similar to the question about family, if it is relevant for the position and scheduling, you may ask if the candidate is available to work weekends and/or holidays to determine if there is a potential scheduling conflict. If the job has no such requirements, this question is not appropriate.

Best Practices

There are many other common, seemingly innocent questions that are inappropriate and could run afoul of discrimination guidance. If you’re uncertain about proper hiring protocols, it’s best to enlist the help of an HR professional who is skilled at conducting interviews.

Human Resources involves many employment laws and regulations and it only gets more complicated as your business grows. Take a look at our handy HR Best Practices Checklist for an overview of all the areas of your business that will benefit from the guidance of a skilled HR professional. 

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A collection of articles from the McClone team with the helpful knowledge and insights to ensure your organization is well protected.