Legal Interview Questions to Avoid

“So, tell me about yourself” is probably the most common question employers lead with during a job interview. It’s a great open-ended question that gives candidates an opportunity to pitch themselves and share their personality. 

But interviewers can stray into illegal territory when their curiosity or innate biases get the better of them. It might feel natural to dig deeper into a person’s family background or lifestyle — but it isn’t fair to base hiring decisions on factors that don’t directly relate to a person’s ability to do the job.

Some candidate information is protected by law, and raising these ‘protected classes’ of information during an interview can put you on the radar of the U.S. Equal Employment Opportunity Commission (EEOC). Asking an illegal question may expose your organization to complaints, investigation by the EEOC, and potential lawsuits and penalties.

Reducing organizational risk isn’t the only reason to avoid unlawful interview questions. The benefits of ensuring your interview questions are legal include:

• An improved candidate experience where job seekers feel respected. 
• Better hiring decisions, guided by objective insights not unconscious biases.
• Enhanced employer branding by ‘walking the talk’ on diversity, equity and inclusion.

Learn more about the kinds of questions not to ask, and alternative approaches you can take to create a more compliant and inclusive hiring process.

Understanding the Legal Framework

Unless your questions are “job-related and necessary to the operation of the business”, you can get into legal trouble by asking about personal attributes that can put a candidate at a disadvantage during a job interview.

EEOC and Employment Law Basics

U.S. federal laws that relate to discrimination during recruitment include:

• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on race, color, religion, sex and national origin.
• Americans with Disabilities Act (ADA), a broad piece of legislation that covers all aspects of civil rights for people with a disability, including equal opportunity in hiring.
• Age Discrimination in Employment Act (ADEA), which is designed to prevent discrimination related to workers aged over 40.
• Genetic Information Nondiscrimination Act (GINA), which prevents employers from asking for genetic testing or making hiring decisions based on a person’s genetic information.

At the federal level, the U.S. Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination laws in private sector workplaces, across recruitment, talent management, remuneration, and dismissals. The Department of Justice enforces charges against state and local government employers. 

Protected Characteristics

The EEOC notes it is illegal to “recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.”

Additionally, employers should be aware of state laws that could impact the legality of interview questions. For example:

• Some states ban asking what the candidate made in their previous job, a.k.a. salary history. Using a person’s salary history to set pay rates often negatively impacts women and minorities already experiencing a pay gap.
• A number of states have extended discrimination protections for people of any age (ADEA only applies to 40+). The size of the employer these laws apply to vary state-by-state, so check the requirements in the jurisdiction you’re recruiting in.

Information about a candidate’s finances is not protected, but job seekers aren’t required to share this kind of personal information — and asking them to do so can create issues. For instance, your hiring decision could be called into question if you applied financial requirements inconsistently across candidates. Delving into a person’s finances, or even asking whether they own a car, creates opportunities for candidates to be unfairly treated.

Common Illegal Interview Questions

There is no definitive list of illegal interview questions — you need to be careful to avoid any question that could signal an intent to discriminate. Here are some examples of unlawful interview questions to watch out for.

Personal and Demographic Questions

Factors like a person’s age, or whether they’re married, gay, or looking to start a family, rarely speak to their competence in a role. Some questions can infer a person’s age without asking outright. That’s problematic, because it forces them to share protected details.

National Origin and Religion

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on national origin, which includes questions about where a person was born, their ancestry, or citizenship status. It’s acceptable to ask if a candidate has the legal right to work in the United States. Questions about a person’s religious views and practices are off-limits, unless it's a role where religion is a bona fide occupational qualification (BFOQ).

Health and Disability Questions

More than one in four adults in the U.S. live with some type of disability (CDC), but that doesn’t mean they can’t excel in a role, given the right support. If a candidate has an obvious disability or voluntarily discloses a disability, you can ask them if they need any help during the interview process or if they’ll need adjustments to the work environment to be able to perform the job.

Arrest Records and Background Checks

Employers are legally allowed to do a background check on candidates, including their criminal history. But you can’t discriminate in how you treat different candidates — for instance, it would be against the rules to only require a background check for Hispanic job seekers. 

A blanket rule against hiring people with a record is a no-no. The EEOC states: “An employer that rejects everyone with a conviction from all employment opportunities is likely engaging in discrimination.” 

During an interview, you can ask whether a person has been convicted of a crime, and for more information about the crime as it relates to the risks and responsibilities of the job. Check state laws too: California is an exception as its Fair Chance Act prohibits employers from asking about candidates’ conviction history before a job offer is made.

How Illegal Questions Can Arise Unintentionally

Aside from outright prejudices and stereotyping, unlawful questions usually arise during a job interview because the interviewers are unprepared, unaware they’re breaking the law, simply curious, or worried about how a person will adapt to behavioral norms in the workplace. 

For instance, an interviewer might inadvertently ask for protected information about a candidate’s home life or religious commitments because they’re worried they won’t be able to work on weekends.  

Casual or ‘Small Talk’ Risks

Informal questions at the start of an interview can quickly cross boundaries. For example, if a candidate has an uncommon name, an interviewer can be tempted to ask about its meaning, which can stray into questions about a person’s national origin — which is protected. 

Interviewers often seek to build rapport by finding commonalities, and when they ‘connect’ with someone, it feeds into the erroneous notion of hiring by gut feel. Obviously that puts people at a disadvantage if their attributes and experiences differ from the interviewers’.

Quirky or ‘Trick’ Question Risks 

Unusual questions designed to test culture fit, creativity, or see how well candidates ‘think on their feet’ can often blur the lines when it comes to legality. 

A 2021 survey (Zety) of hiring managers found candidates had been asked questions like ‘How often do you exercise weekly?’, ‘Are you in love?’ and 'If you were a god what would you do?’ Questions like these bring a person’s health, private relationships and religious views into play, which are danger zones for employers. 

Unstructured Interview Risks

Organizations that run unstructured interviews — a free-form conversational approach — run a greater risk of introducing illegal interview questions. Freedom to ask any question at any point also gives hirers more scope to treat some candidates less favorably based on unconscious biases.

Conversely, structured interviews often skip ‘small talk’ and ensure every candidate gets a chance to respond to the same pre-determined list of questions, which are focused solely on whether they have what it takes to succeed in the job. 

Tech giant Google was once famous for its curveball job interview questions, but abandoned the approach because its analysis found they weren’t predictive of a candidate’s performance. Former VP of people operations at Google, Laszlo Bock, called them “a complete waste of time.” 

Legal and Appropriate Alternative Interview Questions

Structuring questions in the right way can also help uncover useful information about a candidate’s ability to meet your requirements, without infringing the law.

Job-Related Reframing

Rather than asking about candidates’ personal and protected information, you can reframe queries to get facts and evaluate a person’s ability to perform well in the context of the role you’re hiring for.

Behavioral and Situational Questions

Assuming that candidates can’t handle certain tasks well because of their background or personal commitments can lead to illegal interview questions. Instead, develop behavioral and situational questions that let candidates explain how they deal with difficult situations.

Employer Responsibilities and Best Practices for Compliant Interviews

The evidence shows that structured or semi-structured interviews are more effective for reducing bias and predicting a person’s on-the-job performance. But without resources, digital tools, and guidance provided by an organization’s leadership or HR team, hiring managers may struggle to conduct balanced and consistent interviews. 

To ensure interview compliance with anti-discrimination laws, employers should provide:

• Compliance training for staff involved in recruitment, with regular ongoing coaching on why equitable hiring practices matter and illegal questions to avoid. 
• Standardized interview guides with structured interview templates and rubrics to ensure interviewers are scoring candidates based on accurate measures.
• Regular auditing of interview processes and decisions in order to identify issues, refine questions and drive continuous improvement.  
• Automation of workflows and data capture that supports hirers to apply structured interviews at scale, document decisions and gather insights, such as digital interviewing tools.

Employers looking to implement a best practice approach to structured interviews that help interviewers avoid illegal interview questions should consider the following steps.

Build and Maintain a Legally Safe Question Bank

Building a comprehensive bank of legal interview questions for interviewers to choose from is essential. A broad mix of ability-related, behavioral and situational questions gives hirers options depending on the many scenarios where bias can be introduced. It’s also important to establish a review process for regularly updating questions as laws, policies and the requirements of different jobs, evolve.

Use Digital Interviewing Tools Effectively

Digital interviewing tools and end-to-end recruitment management platforms can help your organization ensure only vetted questions are included in interview guides. Easy access to templated interview structures based on role-specific competencies takes away guesswork for hiring managers, whether you’re conducting interviews online or in-person. 

Look for platforms that help you:

• Develop scorecards based on relevant competencies.
• Easily review and refine pre-defined question libraries.
• Streamline evaluations and candidate comparisons.
• Centralize and democratize data for ease of auditing. 

Periodic Reviews and Continuous Improvement

Ensuring your job interview process remains compliant requires revisiting your list of pre-approved questions regularly, but it’s vital to base your improvements on qualified feedback. Best practice approaches would incorporate:

• A review by compliance teams or external legal counsel.
• Analysis of candidate feedback or monitoring of interview experiences.

Avoid Legal Traps When You’re Hiring

What you say in the interview can have serious ramifications for your business. The EEOC recently secured a $1.8 million settlement from a Florida company that asked age-related questions when interviewing applicants to a management trainee program.

Being careful to avoid unlawful interview questions also provides a solid foundation for a more inclusive and ethical hiring approach. Always keep this question in mind: “Does this question truly relate to success in the job I’m hiring for?”