Employers sometimes forget that it’s not just employees who can sue them, but applicants as well. With the cost of defending a claim of discrimination at several hundred thousand dollars, and new laws in place that provide increased hiring protections for candidates, it’s more critical than ever for employers to conduct lawful employment interviews.
As most employers know by now, it’s unlawful to discriminate against a person on the basis of a protected characteristic, such as race, color, sex, marital status, religion, creed, national origin, disability, age, and sexual orientation when making employment decisions. This includes hiring decisions, and by extension, the interview, when otherwise seemingly innocent questions like “Where did you grow up?” can be used to support a claim that a hiring decision was based on a protected characteristic.
There are a number of questions, frankly, that employers should not ask during interviews. Some of them will vary by jurisdiction, but for the most part, they are the same. While not a comprehensive list, below are some examples of questions employers should steer clear of:
- Is this your maiden name?
- What’s your spouse’s name?
- Do you wish to be addressed as Miss? Mrs.? Ms.?
- Do you have, or plan to have, kids?
- Are you a U.S. citizen?
- What is your native language?
- How long have you lived here?
- How did you acquire your ability to read, write or speak a foreign language?
- What clubs do you belong to?
- What religion do you practice?
- Which religious holidays do you observe?
- How old are you? What is your birth date?
- What are the ages of your children?
- What year did you graduate?
- Do you have any disabilities?
- Have you had any recent illnesses?
- Have you ever been arrested?
Keep in mind that, while a good start, simply avoiding asking the questions above won’t insulate an employer’s hiring process from challenge. Not only are there many more forbidden questions, but the hiring process involves much more than just the interview, such as job advertisements, application forms, background checks, and testing materials, each of which is fraught with legal land mines. If you or your hiring managers have been “guilty” of asking the questions above, you should consider consulting with an employment attorney to review your hiring process and to train your hiring managers on the dos and don’ts of that process.