Illegal Interview Questions (And How To Handle Them)

Robin Schwartz

Interviews can be stressful and awkward experiences for both the interviewee and interviewer, depending on their experience level. Sometimes in an effort to get to know a candidate more or to break the ice, interviewers ask questions unrelated to the job posting. The question is, do you know when these questions are illegal to ask and how to avoid answering illegal interview questions?

What to Listen For

As a general principle, any employment interview question should relate to the required duties or functions of the position – known as a BFOQ (bona-fide occupational qualifications). What exactly is off limits when it comes to interview questions?

For many subjects, it’s in how your interviewer phrases the question. Here are a few examples:


Absences

Illegal Question: “How many days did you miss at your last job?” Or, or “Have you had any illnesses recently that caused you to miss work?”
Why Is This Illegal? With the passage of the American with Disabilities Act, questions surrounding possible disabilities or accommodations cannot be used to judge applicants.
Legal Question: “How would you rate your attendance at your last job?”


Age

Illegal Question: “What year did you graduate high school?” Or, or “How old are you?”
Why Is This Illegal? Asking for a specific graduation year generally identifies the age of an applicant. Purposely attempting to identify applicants aged 40 and over can open up a company to complaints of ageism in the workplace based on the Age Discrimination in Employment Act (ADEA).
Legal Question: “Are you over the age of 18?” Or, or “If hired, can you provide proof of age.”


Character

Illegal Question: “Have you ever been convicted of a crime that would prevent you from handling discretionary funds?”
Why Is This Illegal? The EEOC (Equal Employment Opportunity Commission) has said that excluding all applicants with a criminal record could discriminate against certain racial and ethnic groups. The limitations to which employers may be able to inquire about former arrests or convictions may vary statewide, so it’s wise to do some research on your state of employment. The EEOC recommends employers consider the nature and seriousness of the offense, how much time has passed since the offense, and the nature of the job. For example, an employer might reasonably exclude an applicant with a history of identity theft offenses from a job that involves handling confidential customer information.
Legal Question: (The job in question is an Accountant) “Have you ever been convicted that would prevent you from handling discretionary funds?”


Citizenship

Illegal Questions: “Are you a citizen of the United States?” Or, or “Are your parents or spouse citizens of the U.S.?” You also cannot ask when citizenship was acquired.
Why Is This Illegal? The Immigration Reform and Control Act makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual’s citizenship or immigration status. Additionally, The Immigration Reform and Control Act made it illegal for employers to hire, recruit, or refer immigrants without proper identification, or to continue employing those a company knows is not legally permitted to work. So this issue is two-fold: an employer cannot discriminate against non-citizens nor ask about citizenship but must also ensure they are legally permitted to work in the U.S. So, how do employers make that determination? Easy…
Legal Question: “Once offered employment, can you provide proof of eligibility for employment in the U.S.?” It may also be that candidates are asked on an application if they need sponsorship to work in the U.S. now or in the future. This question is also permissible in that some positions within a company may not be applicable for visa or work sponsorship as outlined by USCIS (United States Citizenship and Immigration Services).


Drug/Alcohol Use

Illegal Question: “Have you used illegal drugs in the past?” Or, or “Do you drink socially?”
Why Is This Illegal? This information is non-relevant to most positions. Any inquiry regarding drug/alcohol use that is not job related or necessary for determining an applicant’s potential for employment is not permissible.
Legal Question: NONE! Companies and organizations can have clear drug and alcohol policies to be followed as a condition of employment at a later date. It may also be a requirement of certain positions to pass a pre-employment drug screen. In this case, an potential employer may ask “If offered the position, would you be willing to take an alcohol and drug screen?”


Education

Illegal Question: “Did you attend Brandeis University because of its affiliation with the Jewish faith?”
Why Is This Illegal? Any questions about education should be directly related to the requirements of the position. Questions specifically asking nationality, racial or religious affiliation of a school are not permitted.
Legal Question: “Tell me how your BA from Brandeis University will apply to this position?”


Name

Illegal Question: “If your name has been legally changed, what was your former name?”
Why Is This Illegal? The legal changing of a name could point to marital status (also illegal to ask about) or other familial status.
Legal Question: “Have you ever worked for this company under a different name?”


National Origin/Ancestry

Illegal Question: “What is your nationality/lineage/ancestry?” “How did you achieve the ability to speak/read/write a foreign language? Or, or “What language do you speak in your home?”
Why Is This Illegal? Under the Civil Rights Act of 1964, national origin is considered a protected class.
Legal Question: If a foreign language skill is required for the work, one can ask “What languages do you speak/read/write fluently?”


Race or Color

Illegal Question: “Do you consider yourself (insert race descriptor)?”
Why Is This Illegal? Much like nationality, race or color are a protected class under the Civil Rights Act of 1964.
Legal Question: NONE! There is no way to legally phrase a question about race during the interview process.


Religion

Illegal Question: “What congregation do you attend?” Or, or “What religious holidays do you observe?”
Why Is This Illegal? Again, religion is a protected class under the Civil Rights Act. Religious beliefs are not a job qualifier – unless you’re the Pope.
Legal Question: NONE! There is no way to legally phrase a question about religion during the interview process


Marital Status/Relatives

Illegal Question: “What is your marital status?”, “With whom do you reside?” Or, or “Do you have any children?”
Why Is This Illegal? The Civil Rights Act of 1968 prohibits discriminating against familial status.
Legal Question: “What are the names of any relatives already employed at the company?”


Military Experience

Illegal Question: “Where were you stationed while in the Army?”
Why Is This Illegal? Questions related to military experience in general are not permissible unless specifically asking about related experience listed during service.
Legal Question: “How did your experience in the administrative position with the Army prepare you for this role?”


Organization

Illegal Question: “Are you a member of any organizations or clubs?”
Why Is This Illegal? Inquiring about personal membership in clubs, organizations or lodges can inadvertently uncover demographic information about an applicant that places them in protected classes. Asking about directly related professional organizations would be permissible.
Legal Question: “Are you a member of the American Bar Association?”


Physical Condition

Illegal Question: “Do you have any physical disabilities?” Or, or, “How did you become disabled?”
Why Is This Illegal? Back to the Americans with Disabilities Act of 1990, discriminating against those with disabilities is unlawful.
Legal Question: Later in the hiring process, any applicant may be asked to describe how certain functions of the job may be performed with or without accommodation. During an interview, an applicant might be asked “Are you able to perform the duties as described?”.


Relocation

Illegal Question: “Is your husband/wife/partner okay with you relocating for work?”
Why Is This Illegal? Much like inquiring about work schedule/travel, phrasing the question this way is requesting applicants to reveal personal information which is protected.
Legal Question: “Are you willing to relocate for work?”


Sex

Illegal Question: “Do you prefer to go by Ms., Mrs. Or Miss?” Or, or “Are you pregnant?”
Why Is This Illegal? Thanks to the Equal Pay Act and the Civil Rights Act, any questions revolving around someone’s sex or gender are not permissible. Also, in 2012, the EEOC ruled that employment discrimination on the basis of gender identity or transgender status is prohibited under Title VII. Also protected under the clause of sex/gender is pregnancy. Is it unlawful to discriminate against applicants because they are pregnant.
Legal Question: None! Once again, there is no way to legally phrase questions relating to sex.


Smoker/Non Smoker

Illegal Question: “Do you smoke?”
Why Is This Illegal? 29 states and the District of Columbia prohibit discrimination based on legal activities. Furthermore, whether one smokes or not does not equate to job skills.
Legal Question: NONE! While a company cannot ask if you smoke during the interview process, they are welcome to make their campuses and buildings “smoke free”.


Illegal Question: “Have you ever filed a worker’s compensation claim?”
Why Is This Illegal? Whether an employee has filed a claim against a past employer due to illness or injury has no bearing on whether they are qualified for the position at hand. If an old workplace injury has caused ongoing disability, that would place the applicant in a protected class. Much like “physical condition”, an applicant may be able to perform the duties of the job with or without an accommodation by the ADA (Americans with Disabilities Act).
Legal Question: NONE!


Work Schedule/Travel

Illegal Question: “Do you have kids at home?” If so, “Do you have dependable childcare?”
Why Is This Illegal? Any question that is likely to be perceived by covered group members as discriminatory by revealing protected class information is not permitted.
Legal Question: “Are you willing to work regular business hours, occasional overtime or travel for work?”


While some questions can be altered to ensure lawful inquiry, there are some subjects which have no lawful place in an interview. These include: race or color, religion, sex, drug/alcohol use, and questions regarding past work related injuries.

Questions like these should not and cannot be asked by interviewers and candidates should be concerned if they are. These categories have no impact on how qualified an individual is for a job and opens organizations to claims of discrimination.

How to Navigate Illegal Interview Questions

By navigate, I essentially mean deflect. Your interview is an opportunity for the employer to learn about you and your skills as well as for you to learn more about the position and the company. Directly informing an interviewer that his/her question is illegal won’t likely put an offer letter in your hand.

Take some time before an interview to not only prepare questions you have for the company, but to also consider what you will do if faced with a question you don’t feel comfortable answering. Have canned responses you’re prepared to use instead of blunt statements like “you can’t ask me that”.

Let’s say you ask about the work schedule and inquire about overtime but the employer answers that question by asking you if there are family responsibilities you have which make schedule a concern. There’s no need to answer that question directly. Instead, consider saying “I’m interested in how the company culture views overtime” or “I want to walk away with a clear picture of the expectations of this position.”

Sometimes a question might not be illegal in nature but may feel too personal for you. You have various options in this situation.

  1. You can directly say that you don’t feel comfortable answering the question. It may come across as off putting to the interviewer so consider how you deliver the response.
  2. You can provide a broad and general answer to the question without providing too much personal information in the hopes of steering the conversation elsewhere.
  3. You can redirect the question to your interviewer and ask how it’s relevant to the position.

If you walk out of an interview that you feel focused on you too personally or you’re concerned some of the questions may actually have been illegal, consider this – do you really want to work for a company like that?

If you experience alarm bells or red flags while sitting in the interview, odds are you’ll experience them while employed with that company or organization.

Don’t Open Yourself to Unwanted Questions

Take a good look at your resume.

  • Do you include volunteer or civic activities that are unrelated to your work experience?
  • Do you include hobbies or interests?

In an effort to get to know you more, interviewers might use this information to ask questions you might feel are too personal or may even border on illegal.

Focus on keeping your resume professional and avoid providing unnecessary information – this includes the year you graduated high school. That’s an illegal question to ask a candidate so do not provide this information.

It may be important to remind you as an applicant that your resume may list foreign language skills in an attempt to appear more marketable in an ever changing and increasingly diverse workforce.

While phrasing a question about foreign language skills may be illegal in an attempt ascertain national origin, consider giving interviewers the benefit of the doubt if you’re listing your language abilities as a skill and the interviewer asks questions regarding the competency of those skills.

Never include a headshot on your resume. As someone who has reviewed thousands of resumes, I can’t tell you the panic I feel when I open a resume only to see the candidate’s photo staring back at me. In one photo, you are providing a multitude of information I, as an unbiased reviewer, am not privy to until much later in the hiring process.

Be Your Own Advocate

Don’t hesitate to educate yourself further on illegal interview questions and how to respond if you’re in the job market. If you feel the situation is becoming discriminatory in nature, take discreet notes during or immediately after the interview of the exact questions.

Once the interview is complete, you may want to consider reaching out to the company’s director of HR. In the most severe of cases, you may file a federal complaint with the Equal Employment Opportunity Commission.

In the end, being able to recognize these questions and practicing how to navigate them by keeping the focus on the job will only strengthen your interview skills and make you more comfortable in the hot seat.

About The Author

Robin Schwartz

Robin Schwartz has nearly a decade of experience providing HR expertise to employees and management in higher education. Her broad experience includes benefits, compensation, performance management, employee relations, payroll, talent acquisition and management. She received her masters degree from American Military University and maintains a PHR certification.

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