10 Questions an Employer Should Never Ask

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Job postings

Even before the interview, you must be aware of pitfalls in your advertising. Human Rights and Equal Opportunity Hiring means that an employer must not publish job postings or advertisements that directly or indirectly ask:

• What is your religious affiliation?
• Are you pregnant?
• What is your political affiliation?
• What is your race, color or ethnicity?
• How old are you?
• Are you disabled?
• Are you married?
• Do you have children or plan to?
• Are you in debt?
• Do you social drink or smoke?

The interview

Once you are ready to begin your interviews, there are a few key points to keep in mind when designing questions. You need to ensure your interview process is not intentionally or unintentionally asking questions on prohibited grounds. It is important to describe the job and requirements in a way that gives all applicants a chance to apply. For example, if a position requires regular overtime and has an irregular schedule, do not ask:

“Do you have children?” as you could be assuming a person with children could not work longer hours.
If a job requires heavy lifting, do not ask:
“Do you have a bad back or any medical issues?” as you might be discriminating against a candidate with a disability. (a fully developed job description covers this. "The ability to lift 50 pounds unassisted is a requirement."

Checking references

It is important to note that an employer cannot ask questions that are illegal during any stage of the recruitment process including during the interview or while conducting reference checks. For example, just as you cannot ask a candidate about a disability in the interview process, you cannot then ask their former employer, “How many sick days did they take last year?” However, you can ask if they were reliable and punctual.

While there are many points to cover in preparation for an interview, no point is more important than knowing which questions are considered illegal and are simply NOT allowed to be asked during your interview.

There are numerous state and federal anti-discrimination laws designed to assure that employers hire based upon skill, rather than stereotypes. Therefore, there are some things an interviewer isn't allowed to ask. How do you know what's fair game? Here are some questions that will guarantee to get you into trouble.

1. "What's your race?"
It is illegal for an employer to ask you questions about race or skin color. Unless appearance is a "bona fide occupational qualification" (BFOQ) - for example, if you're applying for a modeling job- you cannot be required to submit a photo with an application.

Fair questions: None. An employment application may include a space where you voluntarily indicate your race, but realistically there is no reason for that in 2019.

2. "What is your national origin?"
An interviewer cannot ask if you are a U.S. citizen, where you were born, or remark upon your accent. Unless a business case can be provided, a company can't specify that English be the only language spoken on the job.

Fair questions: "Are you eligible to work in the U.S. Could you, once employed, submit documentation to that effect?" Companies now require all employees to fill out an I-9 form, in order to confirm that you're a citizen or resident who is eligible to work. If fluency in a language other than English is a job requirement, an employer may ask how you learned that language.

3. "What is your maiden name?"
An interviewer can't discriminate on the basis of gender or marital status. Recruiters may not ask different questions of female and male applicants or of married and unmarried women. It's also inappropriate for an employer to ask if you're planning to have a family or have young children.

Fair questions: An employer can ask for your full name or whether you've worked under another name - in order to check your employment history. Interviewers may inquire about childcare and other family issues by asking: "Where do you see yourself in five years? What hours are you available to work? Do you have other responsibilities that may interfere with your ability to meet the requirements of the job- such as overtime or travel?"

4. "How old are you?"
The Age Discrimination in Employment Act (ADEA) protects people over the age of 40, who work in companies with more than 20 employees, from employment discrimination. Employers may specify an age limit for a position only in rare cases where it can be proven that age is a.

In all other cases, an interviewer may not ask when you were born, when you graduated from high school (since most students graduate at age 17 or 18), or any other questions from which your age may easily be determined. Individuals under age 40 aren't covered by the ADEA, but many states offer them some protection.

5. "Do you have any disabilities?"
Under Title I of the Americans with Disabilities Act (ADA), an employer may not discriminate against a qualified candidate who is disabled, and must make "reasonable accommodations" for physically or mentally impaired employees.

Fair questions: "Can you perform the basic functions of this position with or without accommodation?"

6. "What is your religion?"
There is no reason for an employer to ask you about your religion or about any holidays you observe.

7. "Have you ever been arrested?"
You are innocent until proven guilty; therefore, it is illegal for an interviewer to ask if you've ever been arrested.

Fair questions: Employment applications often include questions about felony convictions, along with a disclaimer saying that a conviction won't necessarily remove you from consideration.

In accordance with U.S. Equal Employment Opportunity Commission (EEOC) policy, employers must weigh a variety of elements when factoring convictions into hiring decisions. These include the nature and severity of the offense, the time that has elapsed, and whether the offense has any relation to the position advertised.

8. "What type of military discharge did you receive?"
An employer may not ask whether you received an honorable or dishonorable discharge.

Fair questions: The interviewer is allowed to inquire about your rank when discharged and discuss the skills you gained while in the military.

9. "Have you ever filed for bankruptcy?"
Questions about your financial status, whether you own a home, or have previously had wages garnished are off-limits.

Fair questions: If good credit is a requirement of the job, a company is within its rights to perform a credit check.

10. "Do you belong to any organizations?"
It's inappropriate for an interviewer to ask whether you are affiliated with or are a member of any political, social, or religious groups- including unions.

Fair questions: An interviewer may ask you if you're a member of a professional organization, like the American Bar Association.

How to React to Unfair Questions

Try and determine what type of information an employer is looking to receive with her questions. It's possible that the interviewer simply mangled the question and had no intent of exhibiting prejudice. For example, if an interviewer asks if you have children, you may deduce that she wants to know if you'd be missing work often to care for them. You might simply answer that you have no problem meeting the positions attendance requirements.