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Posted by HR Solutions Blog Team

Interview QuestionsHiring decisions must be based on objective, job-related criteria, without considering factors such as race, gender, age, or other protected characteristics that are unrelated to the job. To help ensure that you only consider job-related information, avoid interview questions that may directly or indirectly reveal that an applicant is a member of a protected group.

Here are 10 types of interview questions to avoid, along with some suggested alternatives.

Avoid #1: How old are you? What year did you graduate high school?

The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination against individuals who are aged 40 and older. Many states also prohibit age discrimination, some protecting younger workers. Avoid questions during the interview process that reveal an applicant’s age.

Alternative: If there are minimum age requirements for a job in order to comply with a law or for insurance purposes, you may ask whether the applicant meets those requirements.

Avoid #2: Are you pregnant? Do you have or do you plan to have children? Are you married? Does your spouse work? Who is primarily responsible for your children’s care?

Federal law and many state laws prohibit employers from discriminating against individuals because of pregnancy. Some states also expressly prohibit employers from discriminating against applicants because of their marital and/or family status. Accordingly, avoid interview questions about an applicant’s pregnancy, intentions regarding pregnancy, or family and marital status.

Alternative: During the interview, explain expectations related to work hours, overtime, and travel and ask the applicant whether they can meet those requirements. Be consistent and ask these questions of all applicants, not just female applicants, for instance.

Avoid #3: Do you have a disability? How many sick days did you use last year? Have you ever been treated for drug addiction or alcoholism?

The Americans with Disabilities Act (ADA) generally prohibits employers from asking questions regarding an applicant’s medical condition.

Alternative: Under certain circumstances, employers should engage in a dialogue regarding whether a qualified candidate with a disability can perform the essential functions of the job, with or without reasonable accommodation.

Avoid #4: Do you have military obligations that would require you to miss work? Do you have military duties on weekends?

Under the Uniform Services Employment and Reemployment Act (USERRA) employers are prohibited from discriminating against applicants and employees due to past, present, or future membership in the uniformed services. Avoid questions about an applicant’s military obligations.

Alternative: If applicants voluntarily disclose that they served in the military (e.g. on a resume), you may ask questions regarding relevant job-related skills acquired during their service.

Avoid #5: What religion do you practice? Can you work Friday evenings? Saturdays? Sundays?

Employers are prohibited from discriminating against individuals on the basis of religion. This includes religious beliefs (both traditional as well as non-traditional) and religious practices (e.g. attending religious services, praying, or wearing religious garb). Generally, you should avoid questions that tend to elicit information about religious beliefs and practices.

Alternative: If you want to confirm an applicant is able to work the hours required for the job, state the regular days, hours, or shifts for the job and ask whether the candidate can work such a schedule. Note: You may be required to reasonably accommodate an employee’s religious beliefs or practices, such as allowing an employee to voluntarily swap shifts with a co-worker so that they can attend religious services.

Avoid #6: Have you ever been arrested or convicted of a crime?

Several state and local laws limit the use of criminal records by prospective employers. Additionally, some states and local jurisdictions expressly prohibit questions about criminal histories until later in the hiring process. Check applicable laws and consult legal counsel before asking these types of questions.

Alternative: Even where criminal history inquiries are permitted, they must be used in a non-discriminatory way. According to the Equal Employment Opportunity Commission (EEOC), employers should evaluate how the specific criminal conduct relates to the duties of a particular position. This generally requires an individualized assessment that looks at the facts and circumstances surrounding the offense, the number of offenses for which the individual was convicted, rehabilitation efforts, and employment or character references.

Avoid #7: What is your height? What is your weight?

A number of state and local jurisdictions specifically prohibit discrimination on the basis of physical appearance, including one’s height and weight. Furthermore, the EEOC has taken the position that height and weight requirements tend to disproportionately limit the employment opportunities of certain protected groups, unless certain physical attributes are a bona fide occupational qualification (BFOQ).

Alternative: If the job has certain physical demands, you may state them and ask whether applicants can meet those requirements. For example, “This job requires that the employee regularly lift 30 pounds. Are you able to do so?” If you believe a BFOQ applies (e.g. weight requirements for police officers or firefighters), then consult legal counsel before asking questions about physical attributes.

Avoid #8: Have you ever filed a sexual harassment complaint?

Under federal and many state laws, employers are prohibited from retaliating against individuals because they opposed unlawful sexual harassment or participated in a sexual harassment investigation.

Alternative: None.

Avoid #9: Can you provide us with the username and password for your personal social media account?

A growing number of states prohibit employers from asking applicants or employees for log-in information for their personal social media and Internet accounts. Be mindful of this trend and avoid asking candidates for access information to their personal Internet accounts.

Alternative: None.

Avoid #10: What is the origin of your name? Where is your accent from? Where were you born? Where did you grow up?

Federal and many state laws prohibit employers from discriminating against applicants and employees on the basis of national origin (based on where the individual was born or because of their ethnicity or accent). Avoid these questions since they may reveal information about an applicant’s origin.

Alternative: None.

Conclusion:

Avoid interview questions that would directly or indirectly identify an applicant as a member of a group that is protected by federal, state, and local nondiscrimination laws. If an applicant voluntarily offers information about their protected status, it is a best practice to redirect the interview to elicit job-related information that can help assess whether the candidate is qualified for the job. Train supervisors and others who conduct interviews to ask questions in accordance with the law and company policy.

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