6 illegal interview questions not to ask — and legal alternatives

Most of the time when illegal questions crop up in an interview both the questioner and the candidate are unaware. Whether you want to learn as much as you can about a potential hire or simply make conversation, ignorance of the law can’t protect you from getting in trouble. These questions you can’t ask in an interview all verge on being discriminatory and unfair to your candidates.

Illegal job interview questions laws can be complex, but the simple rule is to steer clear of everything that hints at discrimination, as defined by equal employment opportunity laws. This can be more difficult than it sounds. For example, interviewers can ask unwitting questions that subtly refer to protected characteristics as opposed to obviously discriminatory lines of enquiry. Both are illegal questions to ask in an interview, and are prohibited.

Here is a list of illegal job interview questions, with our accompanying suggestions for legal alternatives for you to incorporate into your structured interview process:

1. Where do you live?

This sounds like a perfectly innocent question. You may even see resumes noting the candidate’s address. But still, although not illegal per se, it’s a question best avoided. If a candidate lives at an area inhabited mostly by minorities, you risk lawsuits for racial discrimination.

What do you really want to know?

Often, managers are worried about attendance. It’s natural to assume that people living far away won’t be able to arrive punctually or be constantly on call. But that’s only an assumption. If you want to make sure a candidate won’t have attendance problems, ask them a direct and relevant question.

Legal alternatives:

  • Will transportation to and from work be a problem for you?
  • Would you consider relocating for this job?
  • Are you able to be here at 8 am every morning?

2. Are you/have you been a drug user?

This illegal interview question targets recovering addicts. Same thing goes for questions about drinking and smoking. Additionally, people with health conditions, who are protected by the Americans with Disabilities Act (ADA), may take prescription drugs. If the question doesn’t specifically refer to illegal drugs it poses a discrimination risk.

What do you really want to know?

You probably want to know whether the candidate does illegal drugs and how reliable they are. Reliability can be assessed another way, for example with effective interview questions or from references. You’re allowed to ask about current illegal drug use. But asking might not be useful: few, if any, people would say yes. You’ll get a clearer answer from a legal drug test.

Legal Alternatives:

  • Are you currently using illegal drugs?
  • Are you comfortable taking a drug test?

3. How old are you?

This question comes up often in interviews. However, it points to age discrimination, which is prohibited under the Age Discrimination in Employment Act (ADEA). It’s meant to protect employees over 40, though in some states, younger people are also protected. Similar questions that may reveal age (e.g. when did you graduate high school?) aren’t allowed either.

What do you really want to know?

Age may sometimes be considered a bona fide occupational qualification (BFOQ). For example, you shouldn’t hire a bus driver who’s over the mandatory retirement age. Also, if a job has severe physical demands, you’re likely to want a younger employee. But interviewers shouldn’t ask direct age questions. Ask what you want to know instead.

Legal Alternatives:

  • Are you legally allowed to do this job?
  • This job has the following physical demands. Will you have any issues?

4. Are you a native English speaker?

This question points to discrimination based on nationality or race. It hints that you’re likely discriminating because of a person’s accent (explicitly prohibited by law) or because you suspect they come from another part of the world.

What do you really need to know?

Often, fluency in a particular language is an important job-related requirement (e.g. for call center reps). In these cases, the law allows you to make a hiring decision based on language ability. You still can’t ask whether they’re native speakers but you’re allowed to evaluate their communication skills during the interview. You’re also allowed to ask how fluent they are in other languages.

Legal Alternatives:

  • Which languages can you speak fluently?
  • How would rate your communication skills?

5. Do you plan to have children?

Anything related to parenthood can’t be asked during an interview. Women especially are protected under the pregnancy discrimination act (PDA), and you can’t ask whether they’re pregnant or plan to be in the future.

What do you really want to know?

Concerns about attendance, overtime and commitment are related to parenthood since family usually takes priority over career. However, parents aren’t necessarily less conscientious or willing to do their job. You can ask questions to discover how this job fits into their long-term plans. Or ask directly if they’re able to fulfil the position’s demands.

Legal Alternatives:

  • This job often requires overtime. Will you be able to do this when asked?
  • How do you think this job fits in your career goals?

6. Have you ever been arrested?

The fact that someone may have been arrested doesn’t mean they engaged in criminal conduct. The equal employment opportunity commission (EEOC) warns that arrest questions may have an underlying racial discrimination intent since some ethnic minorities get arrested more often than others. You can’t make a hiring decision based on arrest records.

What do you really want to know?

Obviously, you want to make sure that your new hire won’t engage in unlawful behavior. Conviction records indicate violations better than arrest records. Asking about specific convictions that are relevant to the job (e.g. statutory rape for teachers) is legal under EEOC regulations. Note that you shouldn’t discriminate between people with similar records based on race or nationality. Some states also restrict your rights to ask about convictions. Be sure to illegal interview questions eeoc

Legal alternatives:

  • Have you ever been convicted of fraud?
  • Were you ever been disciplined for violating company policy at a previous job?

Simple rules to avoid illegal interview questions

Be sure that your behavior is legal and use these guidelines to avoid illegal interview questions:

Don’t ask anything that isn’t job-related

Protected characteristics like race are never job-related. Sometimes, religion, age, gender and national origin are BFOQ. This means you’re allowed to consider them when they’re highly relevant to the job.

Structured interview questions are legally defensible. Download our free guide to learn how to get them right.

Don’t beat around the bush

When you want to know if a future employee will be punctual, discuss it directly. Don’t try to deduce an answer by asking irrelevant questions; where they live, whether they have a car or whether they must pick up their children from school in the afternoon.

Don’t cross the line to a personal discussion

No matter how likable or interesting the candidate is, resist temptation to start a personal discussion. Don’t ask anything about their lifestyle, opinions or background that is considered personal.

Don’t ask anything you can learn from a different source

Background checks are key. If you follow the legal procedure, you can learn several things without asking the candidate, such as: conviction records, bad credit etc. References or previous employers are also good sources to find out more about the candidate through legal means.

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Nikoletta Bika

Nikoletta Bika is a writer and a researcher at Workable. She writes about all things HR and recruiting, with a particular interest in metrics, laws, interviews and technology. She's a relentless editor and loves to sneak in Oxford commas in her drafts. She tweets @Nikoletta_Bika.

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