It’s during the interview process that businesses often run afoul of state and federal laws. Even people who understand that discrimination based on protected characteristics like gender, race, age, disability and more is illegal, they may not see their questions of an applicant as discriminatory. They very well can be, however.
Below are just a few examples of questions that an employer needs to avoid when questioning a job applicant or current employee seeking a promotion in order to remain compliant with the law.
Family-related questions
Employers can’t ask questions related to a person’s marital status, if they have children and how many. They can’t ask whether someone is pregnant or plans to be soon. Marital status and pregnancy are both protected statuses. It’s safest to stay away from questions about an applicant’s family completely. These things (particularly when it comes to children) may affect how much time a person can commit to their job. However, an employer can’t assume that they will.
Age-related questions
Concerns about someone’s age are often related to whether they’ll be able to keep up with the demands of a job or how well they know newer technology. It’s fine to ask questions like whether an applicant has used particular systems if they need to for the job — but not to ask how old they are (or have that question on an application). Some employers try to get around that question by asking things like what year someone graduated from college. That’s not acceptable either. Unless a job legally requires someone to be a minimum age, these questions need to be avoided.
Questions about a person’s disability
Potential employers can’t ask things like what a person’s disability is, how long they’ve had it and if it’s permanent. What employers can do is review the requirements of a job and ask whether the applicant can perform those. Employers can ask if an applicant needs any accommodations to do that job. If they do, then they can ask what those accommodations are to determine if they’re “reasonable” under the law.
Certainly, questions about a person’s religion, race, political affiliation, sexual orientation and other personal matters are off the table – except in very limited circumstances where they relate directly to a job. A good rule of thumb is to stick with a person’s qualifications for the job they’re seeking. If anyone representing the employer is uncertain about asking a question that in any way relates to a protected characteristic, they shouldn’t ask it.
Employers who have questions or concerns about interview questions or are facing a potential discrimination claim should get experienced legal guidance. Doing so can help to limit risk and liability accordingly.