When interviewing a prospective employee for an open position, there are some questions you should never ask. If you're involved in HR, you're already familiar with the federal guidelines enforced by the Equal Employment Opportunity Commission (EEOC). These restrictions alone often leave interviewers feeling frazzled - but in some cases, there's even more to consider. Depending on where you are, you may have additional state or local laws to follow.
Have you found yourself trying to stay afloat in the often muddied waters of what can and can't be discussed during interviews? If so, you aren't alone. Often, professionals succumb to the pressure that surmounts from weeding through the technicalities of what makes a question discriminatory. They get skittish and fear accidentally crossing the line, opting for "safe" questions that provide no real insight.
Sound like you? If so, you're probably wasting a ton of your energy and effort on conducting interviews, only to be left feeling like you're fumbling in the dark. If you continuously find yourself back at square one, trying to guess if an applicant is a good fit, what's the point?
After years of training supervisors and also spending time serving as the main point of contact for EEOC-related allegations, I know the frustration first-hand. I've seen uncertainty surrounding what you can and can't ask applicants create significant hurdles. I've watched well-intended hiring managers create serious problems for themselves by asking the wrong questions.
I've also helped many people avoid these pitfalls by guiding them through the process of planning effective interviews with my training packages.
As an interviewer, you should avoid asking these six types of questions at all costs.
Questions about race, color, ethnicity, or national origin
As an interviewer, it's critical to avoid asking questions about race, color, ethnicity, or national origin. It's easy to ask questions that fall within these categories without realizing it. The question doesn't have to use those exact terms to be problematic, although sometimes people do use those terms with a lack of awareness that it's an issue.
Here are a few examples of how this might accidentally show up:
- "What's that accent you have? I can't place it!"
- "Are you a US citizen?"
- "Where are you from?"
These topics are not only sensitive but utterly irrelevant to a job's responsibilities in most situations. Digging for details about these things may make qualified applicants uncomfortable and discourage them from continuing with the hiring process. It also puts you at serious risk of facing discrimination claims.
Often, people ask questions about where a person is from with good intentions. For example, suppose consumer data shows that a specific demographic comprises a large chunk of those engaging with a brand or service. In that case, a company may want employees to be familiar with the "quirks" of that demographic for various reasons ranging from branding to consumer-facing interaction.
That said, utilizing this kind of data for effective marketing and growth strategies requires those in charge to tread a fine line - one that can quickly send a business toppling over into unethical, discriminatory hiring practices (which is why it's illegal to ask about).
If your goal is to determine if a candidate can connect with the needs of your consumer demographic, there are other subjects you can ask about during an interview.
For example, formulating questions that focus on determining a candidate's level of empathy and adaptability. Candidates with these traits should excel in fostering positive experiences with your target demographic, no matter where they're from.
2. Questions about a person's age or date of birth
Age discrimination against job seekers over 40 is a significant problem, spanning many industries. There are laws in place to prevent this, which is one of many reasons you should never try to clarify a person's age during the hiring process. If you do, you could end up breaking the law.
Here's how this could show up during an interview:
- "How old are you/when were you born?"
- "Were you in town way back when (insert blank) happened?
- "When did you graduate high school?"
While those questions seem innocent, they could create big problems. Asking about a person's age or date of birth or asking other types of questions that prompt the revelation of that information opens the door for a job candidate to claim age discrimination, even if there's a valid, non-discriminatory reason you choose not to hire them.
Additionally, asking questions about age can make applicants feel judged. While you may only ask as a "formality," a candidate may feel like you're questioning their age because you feel it to be problematic - even if you're actually sitting there thinking about how easily they would mesh with the rest of your staff.
By avoiding these types of questions in favor of those that prioritize discerning relevant experience, you can foster a more inclusive environment, enabling all job seekers to feel welcome right off the bat.
3. Questions about a person's sex, gender identity, or romantic/sexual orientation
Asking questions about any of the above during a job interview may be seen as a form of discrimination. The EEOC prohibits using this type of information to make decisions about job applicants. While this topic may seem cut and dry, it actually encompasses quite a bit - some obvious and some not.
This is why you should avoid asking things like:
- "Are you married?"
- "What's your current living situation like?"
- "Are you pregnant or planning on becoming pregnant?"
Notice how the above questions don't overtly talk about a person's preferences, physical sex, or gender identity but still hold space for a candidate's response to include information relating back to those factors. Or, in the case of pregnancy, the potential for discrimination based on stereotypes rooted in gender roles - what a person carrying a child is and isn't capable of.
To expand on the above, asking an applicant to elaborate on their living situation is problematic for numerous reasons. Despite not directly touching on a person's romantic or sexual preferences, it may prompt applicants to speak about their partner (or partners), providing insights into a person's orientation that could be used as a basis for a discrimination claim.
It may also make an applicant feel pressured to reveal insights into their personal life that they would prefer to keep separate from work. Staying away from questions that hit on these topics during the screening process protects your company and holds space for your employees to disclose what they're comfortable with in their own time.
4. Questions about a person's religion or political views
These days, many people, even the historically non-political, find themselves bringing up political events at random times. However, it is pertinent to avoid asking questions about a person's religious or political views during a job interview - no matter what seemingly dystopian occurrence your phone's news app alerts you to that morning.
Political affiliation and political activities aren’t protected by Federal discrimination law like religious beliefs are. However, it is often a source of major contention and conflict. Therefore it is best practice to avoid it, even if you don’t have additional laws in your state prohibiting you from asking about politics .
Avoid asking questions like:
- "Did you hear about the ban on (XYZ) just passed in that state? Crazy, right?"
- "What types of groups, clubs, or organizations do you belong to?"
- "Do you require time off for religious holidays or church attendance?"
While it is vital to get to know potential employees, these are both incredibly sensitive topics. Inquiring about them could give the impression that you are biased or prejudiced against certain beliefs, inviting action against your company from the EEOC (in the case of religion) and damaging your company's reputation (in terms of politics).
It's important to tread very carefully when asking questions that could even potentially elicit this type of information from an applicant. For example, suppose you ask how they handle situations where their personal beliefs conflict with their job duties. These days, amid health scares, this one is often asked by interviewers to determine whether or not an employee will cooperate with ever-changing health mandates. Although, even outside of the current circumstances, this is still a "high risk" question with a lot of room for political or religious comments to arise in response.
Remaining mindful not only of your questions but the types of responses they could bring out of a candidate goes a long way in avoiding problematic topics such as these.
5. Questions About Disabilities and "Genetic Information"
When conducting interviews, employers must refrain from asking applicants about whether or not they are disabled. They must also avoid asking about "genetic information ." Genetic information encompasses things like family medical history and more.
For example, if an individual has genetic testing done to see if they've inherited genes associated with Alzheimer's, this would be considered genetic information.
It is blatant discrimination if you ask about these things and choose not to hire an individual based on what you learn. However, as we touched on above, even if there is another non-discriminatory reason, you could end up with a serious situation on your hands for arriving at a decision not to hire after having asked about a person's disability status.
This type of discrimination affects a broad range of individuals. Therefore, it's important to have a thorough understanding of what the word "disability" constitutes in the eyes of the EEOC.
Here are a few basic examples of what not to ask:
- What, if any, injuries or disabilities do you have?
- Have you ever filed a workers comp claim?
- Are you HIV positive? (any disorder or chronic illness applies here)
- Do you have a family history of (insert blank)?
Legalities aside, several undesirable messages are also sent by pressing for information about a person's disabilities. For example, preemptively addressing limitations, you perceive in a candidate could perpetuate the stereotype that all disabled people require additional accommodations to succeed. On the other hand, it could also appear as though your company is resistant to making reasonable accommodations for the disabled folks that do require them - screening for that as a burden to be avoided.
Avoiding invasive, legally problematic questions about disability status and insights obtained via genetic testing allows more space to focus on questions that emphasize the strengths needed to succeed in a role. Reducing judgment and creating space to view all candidates objectively for the expertise and strengths they offer in the present moment is essential for securing and growing alongside top-quality candidates.
6. Questions About Arrests That Didn't Lead to Convictions
Using discretion is important. After all, as humans, we've developed things like intuition for a reason. With that said, there's a fine line between discretion and discrimination. Generally speaking, it is considered industry best practice to refrain from asking about prior arrests that did not result in convictions. According to the EOCC, having an arrest record is not grounds for refusing employment, as it is not sufficient proof of criminal activity.
Some points to consider:
- Probing for answers about a legal issue that was dismissed or where the applicant was found not guilty may be traumatic for the candidate you're interviewing.
- Additionally, depending on your state and local laws, you may be prohibited from doing so as a part of your interviewing process.
By refraining from asking for this type of information, you can keep the interview focused on the candidate's qualifications rather than getting bogged down in the often petty and dated trivialities surrounding an applicant's personal life.
That's not all…
While it would be impossible to touch on every potentially problematic question, there are a couple of additional topics that are important to mention:
- In some areas, you can no longer ask about cannabis use during interviews with job applicants. The laws surrounding this industry are in constant flux, and it's important to stay on top of them if you want to avoid discrimination issues.
- Industry experts agree that you should never ask a potential candidate to provide a photo of themselves as a part of your interview process - doing so could result in inaccurate, potentially problematic assumptions about a person.
Does that question on the edge of your tongue truly relate to the job and its requirements? If not, you should think twice before allowing an applicant to answer. It might be illegal to ask.
Before you book that next interview, ensure you're up to speed. Knowing what to avoid is only the first step. If you're feeling worn down by your interview process, let's start exploring some of your options. After clearing the old, faulty foundation, you need to refine and strengthen the questions you can ask. I've helped many people like you do just that.
Reach out for a free consultation call today!
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