Labor and Employment

Questions to Avoid When Interviewing Employees

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Stay out of legal trouble in the hiring process by avoiding interview questions about these topics.

When you interview job applicants, your purpose is to find out about their skills, education, experience, and ability to do the job. The interview is an important tool for weeding out unqualified applicants, getting a sense of how applicants handle themselves and respond to questions, and ultimately choosing the best hire for your company.

But many employers are anxious about the interview process, fearing that they will invite a lawsuit by asking questions that might be illegal. The good news is that, as long as you focus on an applicant’s qualifications and ability to do the job, you’ll be fine.

Generally, you shouldn’t ask about anything you are legally prohibited from considering in the hiring process. Read on to learn what types of questions are off-limits in a job interview and how you can get the information you need to make good hiring decisions.

Questions About Gender and Family

Title VII of the federal Civil Rights Act of 1964 and similar state laws prohibit employers from discriminating against employees and applicants on the basis of gender and pregnancy. So, for example, you should not ask questions about an applicant’s children (or plans to have them). You also should not ask questions based on assumptions about gender or pregnancy. If a job requires plane travel, for instance, you might say, “This job requires several international trips per quarter; can you meet this travel requirement?” But don’t ask, “How do you feel about leaving your family overnight? Do you have childcare arrangements?”

The prohibition on gender discrimination includes transgender status and gender identity. If, for example, an applicant’s appearance doesn’t fit within traditional gender-based norms, you may not ask about the applicant’s gender (or which restroom the applicant would use). Simply go with the pronouns the applicant uses on your paperwork.

Questions About Race and Ethnicity

Interview questions about an applicant’s race or country of origin are illegal. These traits may not be considered in hiring or other employment decisions. Because language fluency and cultural familiarity may be linked to ethnicity, some employers are confused about how to phrase questions on these types of job requirements. The key is to focus on the qualification rather than how the applicant may have acquired it. For example, if fluency in Mandarin Chinese, Tagalog, or Spanish is a job requirement, you may certainly ask all applicants whether they can speak that language fluently. But you may not ask whether an applicant is Chinese, Filipino, or Mexican.

Similarly, if your business has a specific cultural or racial focus, you may ask about the applicant’s experience and ability to serve your customers. For example, if you run an import company specializing in traditional handicrafts from Central America, you may ask all applicants about their familiarity with these products, but not about their country of origin.

Questions About Age

Often, an applicant’s age will be clear from information on the application, such as the date of graduation from college or years of experience. Just don’t comment on age – or make assumptions on that basis – in asking your questions. Don’t, for instance, spend extra time asking older applicants about their knowledge of the latest technological developments or ask whether an older applicant would be able to report to a younger manager.

Questions About Religion

An applicant’s religious beliefs or observances are always off-limits. As explained above, you may ask about specific job requirements, but not about the reasons why an applicant may or may not be able to meet them. If, for example, the position you are filling requires employees to work both days of the weekend, you can ask applicants about their availability to work that schedule.

Questions About Disability

You may not ask applicants whether they have a disability or how their disability affects them (for obvious disabilities, such as blindness or a mobility problem requiring use of a wheelchair). You may, however, ask applicants how they would perform the essential functions of the job. You may also ask about an applicant’s ability to meet your attendance requirements. However, you should ask these questions of all applicants, not just those who have apparent disabilities.

Once you make a conditional job offer to someone, you can ask questions about the applicant’s medical condition or ask the applicant to take a medical exam. However, you may do this only if you do the same for all applicants. In other words, you may not single out applicants who appear to have disabilities. For more information, see the Equal Employment Opportunity Commission’s Job Applicants and the Americans with Disabilities Act.

Questions About Criminal History

State law determines whether you may question applicants about their criminal records. Some states have adopted “ban the box” laws, which prohibit employers from including a question on application forms about criminal records. Some states prohibit employers from asking about arrests that didn’t lead to convictions or expunged records. Some states allow employers to consider only certain criminal convictions in making job decisions. Contact your state department of labor to find out what’s allowed in your state.

More Information on Employment Discrimination Laws

For more information on relevant federal laws, see Laws Enforced by EEOC on the U.S. Equal Employment Opportunity Commission website. For state-by-state information, see Employment Discrimination in Your State.

To learn more about avoiding job discrimination, see our Employment Discrimination FAQs for Employers.

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