Time to Hire: Make Sure Your Off-the-Cuff Interview Questions Don’t Get You in Legal Trouble

Whether you’re making your 1st or 10th hire, welcoming a new employee is a big milestone for you, the small business owner.

Each time, you do a dance between finding someone with the right skills who’ll bring value to the work you do and someone who’s a good fit for your business. Being equipped with the right interview questions will help you identify a great hire, but not everyone is fluent in what’s appropriate and inappropriate to ask a job candidate.

When CareerBuilder surveyed hiring managers, 20 percent revealed they’ve unknowingly asked an illegal interview question. Bear in mind, these are HR managers—professionals who should be most aware of a proper hiring process. So when it comes to you and your small business, following the correct legal procedures is crucial when hiring.

When it comes to you and your small business, following the correct legal procedures is crucial when hiring.

For instance, in the United States, both the Title VII of the Civil Rights Act of 1964 and subsequent amendments make it illegal to discriminate against a job applicant based on race, color, national origin, sex, gender identity, sexual orientation, disability, religion, political views, age, financial and family status. As a result, it’s illegal to ask certain job interview questions because of the potential for discrimination against a candidate based on their response.

Ready to hire? Ensure an off-the-cuff question doesn’t get you in legal trouble. If you’re not familiar with anti-discrimination laws, here’s a list of 4 subjects to steer away from in your next interview. Note that the following applies to US federal law; it’s important to understand the particular laws for your country or region.

#1: Marital and Family Status

It’s illegal to discriminate based on marital status and number of children. Questions about family status or plans can be used to limit the employment opportunities for women. Generally speaking, you can’t ask any non job-related question regarding marital status or children.

If weekend or evening work is required for the job, you are allowed to ask if a candidate would be available. However, you cannot ask if someone is married, thinking about getting married, is pregnant or plans on having children in the future, if they have kids or what kind of child care arrangement they have. You can read more about the EEO requirements here.

#2: Religious Beliefs

Generally speaking, you’re prohibited from asking about someone’s religious affiliation or beliefs. The only exception is when religion is a part of the job (in legal terms, “a bona fide occupational qualification.” This might apply to religious corporations, schools, associations, etc. From the EEOC: “an employer whose purpose and character is primarily religious is permitted to lean towards hiring persons of the same religion.”

#3: Personal Financial Information

Federal Equal Employment Opportunity (EEO) laws prohibit employers from discriminating against candidates based on financial information…although in this case, there’s no law actually preventing an employer from asking about financial information (like assets, liabilities, credit rating, bankruptcy, ownership of a house, etc.). Here are the specific rules:

  • You can’t apply a financial requirement differently to people based on their race, national origin, sex, age, or other characteristics. So, if you’re going to ask about finances, you need to ask the same question(s) to every candidate.
  • You can’t ask about finances if it does not help you accurately identify responsible and reliable employees (and your requirement can’t disadvantage people of a particular color, race, sex, etc.)
  • If you have a financial requirement, you may need to make an exception to someone who cannot meet the requirement due to a disability.
  • For more information, check out the EEO website.

#4: Disabilities

The Americans with Disabilities Act (ADA) places some restrictions on asking medical questions, requiring a medical exam or identifying a disability. You cannot ask a candidate if they have a disability, nor can you ask about an obvious disability. You can ask someone whether they could perform the job (for example, lift a 30-pound box).

Key Examples of Legal and Illegal Interview Questions

Generally speaking, stick to asking questions related to job performance. However, it’s illegal to ask questions that could form a bias in hiring based on race, color, national origin, sex, gender identity, sexual orientation, disability, religion, political views, age, financial and family status.

Do Ask:

  • What your educational background and what expertise qualifies you for this job?
  • Are you legally eligible to work in the US?
  • What are your long-term goals?
  • Are you willing to travel?
  • Are you available for overtime?
  • Will you be able to work on Saturdays or Sundays? (Ask only if this is an actual requirement for the job)
  • Do you belong to a relevant professional association? (Note: You cannot ask about any other club or social organization)
  • What other languages are you able to read, speak or write fluently?

Don’t Ask:

  • How old are you?
  • What is your sexual orientation?
  • Do you attend church?
  • Are you married, divorced, separated? Do you plan on getting married?
  • Have you ever filed a workers’ compensation claim?
  • Do you have children at home? How old are they? Who cares for them? Do you plan on having more?
  • What is your political affiliation? Who did you vote for?
  • Are you in debt?
  • When do you plan to retire?
  • Are you pregnant or planning on having children?
  • Are you a citizen and where are you from?
  • What’s your race or ethnicity?
  • Is English your first language?

Most people understand the basic concepts of a legal hire but sometimes run into trouble when breaking the ice with a candidate. Remember: Keep all your questions within a professional capacity and only ask questions that relate to both the job description and relevant experience. And, finally, I encourage you to ask a similar set of questions each time to ensure equal treatment for those you interview.

about the author

Freelance Contributor Nellie Akalp is a passionate entrepreneur, small business expert, professional speaker, author and mother of four. She is the Founder and CEO of CorpNet.com, an online legal document filing service and recognized Inc.5000 company. At CorpNet, Nellie assists entrepreneurs across all 50 states to start a business, incorporate, form an LLC, and apply for trademarks. She also offers free business compliance tools for any entrepreneur to utilize. Connect with Nellie on LinkedIn.