Federal and state laws prohibit most employers from discriminating in any aspect of the hiring process, including screening applications, conducting interviews, and testing applicants. During the interview process, employers may not ask questions about protected characteristics, such as race or disability, nor may they use those characteristics in deciding who will get the job.
Which Characteristics Are Protected?
Under federal law, employers with at least 15 employees may not make job decisions on the basis of:
- sex (including pregnancy)
- national origin
- disability, or
- genetic information.
Employers with at least 20 employees are also prohibited from making decisions based on age, if the employee or applicant is at least 40 years old.
Many states and local governments have their own job discrimination laws, some of which apply to smaller employers or prohibit discrimination on other grounds. For example, employers in California may not discriminate based on an applicant’s political activities, HIV status, or marital status; Illinois employers may not consider an applicant’s history as a victim of domestic violence or the fact that an applicant has no permanent mailing address (or receives mail at a homeless shelter or social services agency). To find out your state’s rules, see our articles on state employment discrimination laws.
Illegal Interview Questions
Because employers may not make hiring decisions on the basis of a protected characteristic, they also should not ask about protected characteristics during job interviews. Employers should not ask about your race or ethnic background, whether you plan to get pregnant, or how old you are, for example.
If you offer this information during an interview or the information is obvious, employers may still not make decisions on those grounds. For example, if an interviewer mispronounces your last name, and you correct the error, pointing out that the name is Persian and you were born in Iran, the interviewer may not use that information in deciding whether or not to hire you.
Reasonable Accommodation for a Disability
Employers may not ask during an interview whether you have any disabilities. However, an employer may tell you how the hiring process works and ask whether you will need a reasonable accommodation to participate, as long as does so for all applicants.
If you tell the interviewer about your disability or you have an obvious disability (for example, because you use a wheelchair or a service animal), the interviewer may ask whether you will need a reasonable accommodation to perform the essential duties of the job. The interviewer may also ask you to demonstrate how you would perform those duties. Otherwise, however, questions like these are off-limits during interviews because they would reveal whether you have a disability.
If the employer makes you a conditional job offer, the rules change. At that point, the employer can ask you questions about your health and disability status and ask you to take a medical examination. However, the employer must treat all applicants the same in this regard; it cannot ask these questions only of applicants with obvious disabilities. And, an employer may not make hiring decisions based on your disability, as long as you are qualified to do the job, with or without a reasonable accommodation. (To learn more, see our article on reasonable accommodation under the Americans with Disabilities Act.)
If You Are Facing Discrimination
If a prospective employer asks you discriminatory questions during an interview, you’ll have to decide how to respond on the spot. For example, if an interviewer asks whether you have any disabilities, you could say, “Is it legal to ask that during a job interview?” That might be enough to get the interviewer to move on. If you choose not to challenge the interviewer, you’ll have to decide whether you feel comfortable answering the question.
If you think a potential employer decided not to hire you for discriminatory reasons, you should talk to an employment lawyer right away. It is very difficult to prove discrimination in hiring, for the simple reason that you don’t have an ongoing relationship with the company that rejected you. In other words, you have very little opportunity to learn the real reasons why you were not hired or who was hired instead. An attorney can help you decide whether your claim is worth pursuing or whether it would be wiser to move forward with your job search.
Questions for Your Attorney
- Is it legal for an employer to ask on a job application if I've ever been arrested?
- Can an employer ask me if I'm authorized to work in the U.S.?
- I’m obviously pregnant, and I think this is why I wasn’t hired (even though the interviewer didn’t ask about it). What can I do?