Legal vs. Illegal Interview Questions: How to Get the Information You Need

In every job interview, the goal is to obtain important information while building rapport with the candidate. But there are some questions that are not only inappropriate to ask, they're flat-out illegal. State and federal laws protect against discrimination based on certain protected categories, such as national origin, citizenship, age, marital status, disabilities, arrest and conviction record, military discharge status, race, gender, or pregnancy status. Any question that asks a candidate to reveal information about such topics without the question having a job-related basis will violate various discrimination laws.

How can you avoid the wrong questions while still getting to the root of the concern behind the question? Read on for 20 ways to turn potentially litigious questions into harmless, legal alternatives.

You cannot ask: Are you a U.S. citizen? or Were you born in this country?

Rather than inquiring about citizenship, question whether or not the candidate is authorized for work.

You can ask: Are you authorized to work in the U.S.?
You cannot ask: What is your native language?

Whether you're asking because you're interested or because you want to find out if an applicant is fluent in a certain language, you need to avoid offending applicants or raising suspicions of discrimination.

You can ask: What languages do you read, speak or write fluently?
You cannot ask: How long have you lived here?

Familiarity with local roads or culture may be important to the position, but asking about a candidate's residency in the country or region might get you into trouble.

You can ask: What is your current address and phone number? Do you have any alternative numbers or locations where you can be reached?
You cannot ask: What religion do you practice?

Maybe your motive for knowing about religious practices is to find out about weekend work schedules, but refrain from asking directly about a candidate's beliefs. Instead, just ask directly when they're able to work.

You can ask: What days are you available to work?
Similarly, you cannot ask: Which religious holidays do you observe?

You can ask: Are you able to work with our required schedule?
You cannot ask: How old are you?

This is a loaded question if there ever was one. Asking about an applicant's age can set you up for discrimination accusations down the road.

You can ask: Are you over the age of 18?
You cannot ask: How much longer do you plan to work before you retire?

While you may not want to hire an older worker who will retire in a few years, you can't dismiss an applicant for this reason.

You can ask: What are your long-term career goals? or Where do you see yourself in 3-5 years?
You cannot ask: Is this your maiden name?

This question is totally off-limits. A woman's marital status isn't something that's required to be shared with employers.

You can ask: Have you worked or earned a degree under another name?
You cannot ask: Do you have or plan to have children?

If the concern here is allegedly that family obligations will get in the way of work hours, get to the root of the issue.

You can ask: Are you available to work overtime on occasion? Can you travel?
You cannot ask: Will you be able to get a babysitter on short notice for overtime or travel?

You can ask: You'll be required to travel or work overtime on short notice. Is this a problem for you?
You cannot ask: Who is your closest relative to notify in case of an emergency?

Believe it or not, this question has gotten interviewers in trouble--because it makes assumptions about the candidate's personal life.

You can ask: In case of emergency, who should we notify?
You cannot ask: If you get pregnant, will you continue to work, and will you come back after maternity leave?

Yes, you want to invest your time in a candidate that will stick around, but asking this question is way out of line.

You can ask: What are your long-term career goals? or Where do you see yourself in 3-5 years?
You cannot ask: Do you smoke or drink? Or take illegal drugs?

As an employer, you probably want to avoid someone who has a drinking problem or will take multiple smoke breaks throughout the day. It's even a concern for insurance.

You can ask: In the past, have you been disciplined for violating company policies forbidding the use of alcohol, tobacco or illegal drugs?
You cannot ask: How much do you weigh?

Even if you think this question is relevant to a candidate's ability to do a physical labor job, avoid asking something so personal and potentially embarrassing or discriminatory.

You can ask: Are you able to lift boxes weighing up to 50 pounds?
You cannot ask: How many sick days did you take last year?

Sure, you want to know if you're hiring someone who will be absent a lot. Just turn the question around.

You can ask: How many days of work did you miss last year?
You cannot ask: Do you have any disabilities?

You can ask: Are you able to perform the specific duties of this position? or Are you able to perform the essential functions of this job with or without reasonable accommodations?
You cannot ask: Do you live nearby?

If your candidate lives outside of the city your company is hiring in, you may want them to move to your area. But you can't discriminate based on location.

You can ask: Are you willing to relocate?
You cannot ask: Have you ever been arrested?

When you're hiring for sensitive positions, such as those that deal with money, this is a legitimate question. But to keep it legal, make sure you ask only directly about crimes that relate to your concern.

You can ask: Have you ever been convicted of "x" (fraud, theft and so on)?
You cannot ask: Are you a member of the National Guard or Reserves?

Losing an employee to military service can be disruptive, but it's critical that you don't appear to be discriminating based on assumptions of a candidate's upcoming military commitments.

You can ask: Do you have any upcoming events that would require extensive time away from work?
You cannot ask: Were you honorably discharged from the military?

A bad military record can be revealing, but such a direct question is prohibited. Instead, ask about the candidate's experience, and they may volunteer this information on their own.

You can ask: Tell me how your experience in the military can benefit the company.

These questions should help you maintain a legal hiring process and improve your track record of successful hiring as you find the right candidates more easily--but legally.

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