Federal laws make it illegal to discriminate against applicants because of race, color, religion, sex, age, national origin or disability. As welcome as these protections are for workers at all levels, they can also make an interview a potential minefield for employers. The wrong question, whether it’s technically illegal or not, can prompt a long and costly investigation by the Equal Employment Opportunity Commission (EEOC). At best, an EEOC investigation is a costly, time-consuming affair that can produce bad PR. At worst, it can elicit a formal EEOC complaint — a lawsuit that ends in one of two ways: via settlement or in court.
Take our 10-question quiz to test your knowledge of forbidden questions during a job interview, and share the quiz with hiring managers across your organization.
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Are you vaccinated against COVID-19?
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Hiring managers can ask about vaccination status as far as federal law is concerned, but they need to be aware that some states prohibit inquiry or consideration of vaccination for employment purposes. "EEOC guidance indicates that vaccination status alone is not an inquiry into medical information, so the main law governing the query at the federal level — the Americans with Disabilities Act — would not preclude asking an employee or potential employee about their vaccination status," says Stephen Riga, a privacy, employee benefits and healthcare attorney with Ogletree Deakins.
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How old are you?
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Although not technically illegal, you're asking for trouble if you pose this question in this way. (Legal versions of this question would include, "Are you at least 18 years of age?" or "If hired, can you furnish proof of age?") "The Age Discrimination in Employment Act of 1967 (ADEA) does not explicitly prohibit an employer from asking an applicant's age or date of birth," says Joseph Olivares, public affairs specialist at the EEOC’s Office of Communication and Legislative Affairs. "However, such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, contrary to the purposes of the ADEA." If the information is needed for a lawful purpose, it can be obtained after the employee is hired.
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Are you disabled?
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General questions that would tend to elicit information about disabilities or health conditions that do not relate reasonably to fitness to perform the job are strictly out of bounds, says Joan Ustin, principal at Joan K. Ustin & Associates, a management consulting company specializing in organization development and human resources. Indeed, such questions could result in a lawsuit under the Americans with Disabilities Act (ADA). You can, however, ask specific questions related to requirements listed in the job description: "Can you lift 40 pounds?" or "Do you need any special accommodations to perform the job for which you've applied?"
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Do you attend church on Sundays?
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It's illegal for an employer to discriminate against a job applicant because of religion. Thus, any question that directly or indirectly relates to a person's faith is risky. Note that it is indeed permissible for hiring managers to ask potential employees if they can work on Saturdays or Sundays if that happens to be a requirement for the job, Ustin says.
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What are your preferred pronouns?
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By the EEOC's own admission, this is a tricky one. "Asking that question, in itself, might not be discriminatory," says the EEOC's Olivares. What matters, he notes, is the intent behind the question. You might recall the 2021 Indeed.com commercial that depicted a hiring manager asking a candidate, “Are you comfortable sharing how you like to be addressed?” But stop there. Federal law (and some state laws) prohibits discrimination on the basis of an applicant's sex, including sexual orientation and gender identity. More explicit questions such as “Are you gay?” or “Are you transgender?” simply should not be asked.
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Have you ever committed a crime?
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Inquiries relating to arrests are illegal, Ustin says, and can lead to an EEOC investigation or even a formal complaint. Asking "have you ever been convicted of a crime?" might be fair game, but it raises potential legal issues of its own. Although federal law doesn't specifically prohibit hiring managers from asking job applicants about criminal histories, state laws vary. The EEOC, for its part, recommends that employers avoid asking this question on job application forms. The safest route for most employers is to cover these bases by using pre-hiring background checks
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Do you plan on having children?
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Questions relating to pregnancy – such as "Do you plan on having more children?" – could lead to an EEOC investigation or formal complaint. It is permissible for hiring managers to ask applicants about duration of stay on a job or anticipated absences, but those questions must be put to both male and female applicants alike.
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Are you married?
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Any question related to marital status – whether the applicant is married, divorced, separated, engaged or widowed – is unlawful, says Ustin, and could lead to an EEOC investigation and even a formal complaint. Some examples of this ill-advised query include:
- "What is your marital status?"
- "What is the name of your [relative/spouse/child]?"
- "With whom do you reside?"
- "Do you live with your parents?"
- "How old are your children?"
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9 of
10
Have you ever been treated for drug addiction or alcoholism?
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Questions about an applicant's medical history, including whether they've had any illnesses, have had mental health counseling, take prescription drugs or use drugs or alcohol, could result in a lawsuit under the Americans with Disabilities Act.
Question
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10
Do you believe in Bigfoot?
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Lots of well-known companies ask seemingly zany questions in an effort to get more revealing answers out of their applicants. According to job search and review site Glassdoor, which collects such examples, Wall Street investment bank Goldman Sachs has been known to ask potential employees to estimate how much pizza Americans eat every year – in square feet. A hiring manager at Xerox asked a candidate to explain why tennis balls are fuzzy. Meanwhile, wannabe Airbnb employees have been asked the question, "How lucky are you and why?"
