Questions To Avoid In An Interview

By Peter J. Preston

Depending on where your business is located, and how many employees you have, there are any number of anti-discrimination laws you must observe.

While every employer wants to hire the best employees possible, that does not give you carte blanche to ask your prospects anything during an interview. Depending on where your business is located, and how many employees you have, there are any number of anti-discrimination laws you must observe: Title VII, ADA, ADEA and FMLA are only the most well known among the alphabet soup that makes up this country’s workplace regulation laws. Most employers have at least heard of these statutes, but many don’t realize that they apply even during the interviewing process.

You want to be sure that questions asked of applicants are (a) related to the job and (b) asked of all of the applicants you interview.

As a general rule, you want to be sure that questions asked of applicants are (a) related to the job and (b) asked of all of the applicants you interview. The questions that follow could lead to a discrimination charge if the answer means you do not hire the prospect, unless you can show that the question was needed to determine whether or not the applicant was qualified to perform the job. But, why complicate an already arduous process? Once you know which questions are off-limits, you can avoid potentially sticky situations… and legal expenses.

“Is that Miss or Mrs.?”

While it is certainly reasonable (and advisable) to ask an applicant’s full name, you should avoid inquiring about marital status. Many states prohibit discrimination based on it, and even if your state doesn’t, questions in this vein can only lead to trouble.

“How old are you, anyway?”

The Age Discrimination in Employment Act (ADEA) prohibits age-based discrimination against people over the age of 40. Age is rarely relevant to whether or not an applicant can perform a job and avoiding questions that seem targeted at determining someone’s age is always advisable. You are, however, permitted to ask a candidate for proof of age after hiring that person.

Where are your parents from?”

Title VII of the Civil Rights Act of 1964 (Title VII) bars discrimination on the basis of national origin. You will be hard-pressed to explain why this type of question, or any question that gets into a potential hire’s ancestry, was relevant to determining if he or she was qualified for the job. If the job requires particular foreign language skills, you may inquire about that directly, but avoid chatting about the candidate’s background.

Can you use your arms at all?

Few people would ever be so direct and insensitive, but the point is you should only explain the jobÍs requirements and ask whether or not an applicant can perform all the listed tasks. Do not, however, make general inquiries about a potential employeeÍs disability. The Americans with Disabilities Act (ADA) prohibits workplace discrimination against a disabled employee who is qualified to perform the essential requirements of a job.

Planning to start a family soon?

You are entitled to ask how long an applicant expects to be available to work, if you ask the same question of all applicants"male and female. However, questions about plans for pregnancy should be avoided. Since 1978, federal law has treated discrimination on the basis of pregnancy as sex discrimination prohibited by Title VII. Women affected by childbirth and pregnancy must be treated in the same fashion as similarly non-pregnant workers.

Strictly speaking, simply asking questions like the ones mentioned is not illegal. But why risk it?

Strictly speaking, simply asking questions like the ones mentioned is not illegal. But why risk it? If you do ask these types of questions of someone who is among one of the groups anti-discrimination statutes aim to protect, and decide against hiring that person, you may have given that applicant the ammunition to start an investigation by a governmental agency that will—at a minimum—take up your time and resources in responding to the complaint and detract from your ability to focus on growing your business.



Peter J. Preston is an attorney at the Chicago office of Sedgwick, Detert, Moran & Arnold LLP.

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