Are you Asking these Illegal Interview Questions? Probably.
The whole point of the interview is to gain as much knowledge about the candidate as possible. Although recruiters and hiring managers are well versed (or they should be) on the matter of legalities during an interview, it can be easy to slip over into illegal territory without even realizing it. Even if you have been asking these questions for years, it may be that one interviewee who interprets these questions negatively.
Interviewers should steer clear of any questions that would cause the interviewee to have to reveal any of the following:
- National Origin
- Marital Status
- Sexual Orientation
- Pregnancy Status
This is shaky ground though. While these topics are off limits, if the employer poses the questions in a manner that directly relates the topic to the position qualifications, the question may be considered legal. This is a very fine line to walk. Intent behind the question is what will usually discern legal from illegal interview questions. This can make it very hard to determine what questions are safe, and what questions could warrant legal action. It is always better to be safe than sorry.
Okay, the title may have been crafted a little scare ‘tactic-y’. While these questions aren’t actually illegal to ask, it is illegal to discriminate based on the answers to these interview questions. So, while you may be staying legal, these types of questions will open up the company to unsafe practices, which may lead to legal trouble.
“What is your family life like?”
There are a few problems with asking a question like this. While the interviewer may be asking this type of question to gauge the candidate’s time commitments, it could lead interviewees to disclosing their sexual orientation. This information could then in turn be used as a potential reason for not hiring that candidate.
This also applies to inquiring about children or plans for having children. Children are a huge time commitment. They get sick, they have snow days and shared custody can get very messy. Because it is illegal to deny a candidate employment for having or planning to have children, this is a question that interviewers should stay away from.
This conversation should truly be around commitment to the position. Interviews should find other, more direct ways to inquire about this. They could ask how many hours a week they could firmly commit to the company, or ask if the candidate has other responsibilities that would interfere with the stated job requirements.
“What Country are You From?”
Although this may just be a conversation starter, or the interviewer might simply be trying to identify an accent, they should not ask questions that involve the candidate’s national origin. This will also exclude some other related questions like, “What is your native language?” or “What religious holidays do you observe?”
You can, however, ask if they are authorized to work in a certain country, or if they are free to work on specific days, like Sunday for instance. Employers are also allowed to ask about other languages that the candidate may be fluent in. Again, if the interviewer’s real question is about the candidate’s ability to fill the position, stick with asking about their ability to fill the position.
“Have you recently used drugs or alcohol?”
It only seems fair to be able to find out if you’re hiring a junkie, but this is very sensitive legal territory. The Americans with Disabilities Act of 1990 prohibits employers from asking about drinking and drug habits.
Additionally, employers may not ask about the past use of illegal drugs, but they are allowed to ask if the candidate is currently using them. The current use of drugs is not protected under the act.
The interview process can be a virtual minefield of legalities. Get to the root of what you want to know, and pose the questions in as direct a manner as possible, without putting candidates in a position to disclose personal information. If you want to know whether or not they can perform the essential job duties, ask them.
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