by Karolynn St-Pierre
During interviews it seems easy to just go with the flow of asking questions, but did you know there are some inquiries that can get you into legal trouble? Many employers may be unaware that there are great risks with asking about some of the most common topics with potential hires. While no one is going to arrest you for using these questions, you will find that there is a significant amount of legal risk, including the possibility of being sued for discrimination.
Below are several common questions that are best avoided when interviewing potential hires.
- Where were you born?
While this question seems innocent enough on the surface, it could be used to gather information illegally about a person’s national origin. Although it may seem more relevant, hiring managers are also not allowed to ask, “Are you a U.S. citizen?” Employers may ask whether or not a candidate is authorized to work in the United States, but not specifically about citizenship. They may also ask for documents proving authorization to work in the U.S. after a person has been hired.
- What is your native language?
Again, the problem with this question is that it could be used to determine national origin. The employer can ask whether a candidate knows a particular language — only if it is required for the job. For example, if job responsibilities include supporting Spanish-speaking customers, it’s fair to ask if the potential hire speaks Spanish.
- Are you married?
Here’s another question that would seem innocent in most settings, but is not allowed in a job interview. Employers are not allowed to discriminate on the basis of marital status.
- Do you have children?
Though this, too, sounds like a casual, innocent question. However, it is covered by a general prohibition about discrimination over parental status.
- Do you plan to get pregnant?
This question is not legal. Employers used to ask this of women to avoid hiring someone who would go out on maternity leave. It is illegal to discriminate on the basis of gender and on the basis of pregnancy.
- How old are you?
Age discrimination is illegal, so this question is off limits. Some companies have tried to avoid hiring workers over a certain age for fear of higher insurance costs, the potential for more absences and because of a general age bias. For this reason, employers are not supposed to ask what year a person graduated from college, either, unless there is some job-related reason for the question.
- Do you observe Yom Kippur/Good Friday/Ramadan, etc.?
Employers can’t discriminate on the basis of religion, so this question is illegal. Employers can ask whether a candidate can work on holidays and weekends (if it’s a job requirement), but not about the observance of specific religious holidays.
- Do you have a disability or chronic illness?
It is illegal to use disability or medical information as a factor in hiring, so these questions are illegal. If the job would require some specific physical task, such as bending to install cables in walls, the employer can ask if the candidate could perform those tasks with reasonable accommodation.
- Are you in the National Guard?
Although some managers may find it disruptive when employees leave for duty, it’s illegal to discriminate against someone because he or she belongs to the National Guard or a reserve unit.
- Do you smoke or use alcohol?
In general, employers can’t discriminate on the basis of the use of legal products when the employee is not on the premises and not on the job.
Federal and state laws prohibit prospective employers from asking certain questions that are not related to the job they are hiring for. Questions should be job-related and not used to find out personal information. Employers should not be asking about race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, sexual preferences or age.
While you will not go to jail for asking these questions, remember there are less-than-honest attorneys out there looking for reasons to sue. If they will have proof that you are asking these questions, you could find yourself on the bad side of a lawsuit.
Karolynn Humberd St-Pierre is a former employment attorney, Senior Human Resource Professional, author and speaker known for her expertise in helping businesses navigate the complexities of human resource management. Her book, The Small Business Human Resource Bible has become a desktop guide for small business owners nationwide. She is an active speaker with the Small Business Administration and the Small Business Development Centers on HR legal related topics since 2010. In 2009 Ms. St-Pierre founded Symmetry Consulting, LLC. Symmetry Consulting partners with its clients so they can focus on their bottom line and business growth, while Symmetry manages their HR functions and ensures compliance with labor laws. Find her on Facebook, LinkedIn and Twitter @KarolynnStPierr.