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Illegal Interview Questions: The Origins

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In today’s competitive environment — i.e., The Great Resignation — recruiting quality candidates is key to your organization’s success. However, in your enthusiasm to hire the right person, it’s easy to forget about what you as a recruiter can ask, and what kinds of questions you should stay away from. And it’s even more likely that hiring managers won’t know which interview questions are illegal in their states.
The stakes are high. After all, you don’t want to lose good candidates, tarnish your organization’s reputation, or have a lawsuit on your hands. That’s why we’ve created an overview of topics to avoid, including specific illegal interview questions and the origins of the various laws.

Salary

While it was once typical to ask questions like, “What’s your current salary?” or “Tell me about your salary history,” these are now illegal interview questions employers in several states should avoid. These regulations started in California and have since spread to a long list of states, such as Colorado, Connecticut, Georgia, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, and Washington.
Advocates for these types of laws believe that asking about salary history perpetuates disparities in pay based on race, gender, and other factors. The goal is to get rid of pay discrimination among underrepresented groups and other historically underpaid employees.

Age

In most states, it’s within your organization’s rights to make sure a candidate is over the age of 18. In other words, you’re allowed to say, “Are you over the age of 18?” However, it’s illegal to ask other age-related questions, such as “When did you graduate college?”, “What year were you born?”, “What’s your birth date?”, and “When did you first start working?”
You also should avoid making comments or taking notes that estimate an applicant’s age. If you or a hiring manager accidentally asked an age-related question, you expose your company to potential legal action. It’s important to reach out to your organization’s legal counsel for advice.
The laws about age-related interview questions are derived from The Age Discrimination in Employment Act of 1967, a United States labor law that was passed to protect those 40 and older — who are in a protected class — from age-related discrimination.

Family Status

Questions like “Do you have kids?” or “Are you planning on having kids?” are also illegal questions during an interview on a federal level. Why? These questions have been used by employers in the past to avoid hiring women on the assumption that they won’t be able to fulfill their job duties due to maternity leave or taking time off to care for their child/children. Make sure to avoid questions about pregnancy — even if the candidate is obviously pregnant — family planning, or childcare arrangements.
Additionally, stay away from other questions related to a candidate’s family status, such as “Are you married?” or “Are you single?” Instead focus on questions related to whether the candidate can perform the duties in the job description.

The basis for these laws comes from Title VII of the Civil Rights Act of 1964, which “makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity) or religion.”

Disability

An employee can potentially get disability pay for pregnancy, which is another reason employees can’t ask about health and family status. But there are other disabilities that are protected. For example, never ask questions, such as “Have you filed a workers compensation claim in the past?”, “How is your health?”, “Have you ever had an injury at work?”, or “Do you have a condition that could impact your job performance?”
Additionally, stay away from questions about a candidate’s weight, height, or other details related to mental or physical limitations.
The origins of these laws? They began in 1994, when the Equal Employment Opportunity Commission (EEOC) released the Enforcement Guidance on Pre-Employment Disability-Related Inquiries and Medical Examinations Under the Americans With Disabilities Act of 1990. That’s when the EEOC issued guidance on how it investigates charges of disability discrimination; their goal was and is to prevent employers from asking candidates about disabilities during interviews.

General Tips for Recruiters Asking Interview Questions

As a recruiter, you want to find someone with the right abilities and skills for each role; as do hiring managers. But the questions and topics that are off-limits are illegal for good reason. The current laws encourage employers to focus on each individual’s talents and skills, not their personal life. They also help candidates who might otherwise be dismissed get a fair shot.
Avoiding illegal questions isn’t always easy, however. In fact, 20% of hiring and human resource managers have admitted to asking illegal interview questions. What’s more: when shown a list of illegal interview questions, 33% weren’t sure if they were legal or not.
Here are some best practices to avoid putting your company at risk (and feel free to share them with hiring managers):
  • Come up with a list of questions before an interview and stick to the script.
  • Avoid asking anything that’s overly personal.
  • If a candidate gets too personal, redirect the conversation with questions that tie back to the job.
  • Stay afloat on what’s legal and illegal to ask.
  • Keep the focus of your questions on the job description and whether the candidate meets the necessary requirements for the role.