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Ask This, Not That! Avoiding Inappropriate Interview Questions

NO_ice_creamIf you’ve ever skimmed the Eat This, Not That! book series (you can admit it), you know the premise of the books is to help you make healthier choices about the foods you eat.  Instead of consuming a thick, rich, creamy chocolate milkshake, for example, you could theoretically get the same delicious taste satisfaction – but fewer calories! – by eating fat-free, no-sugar-added chocolate pudding (theoretically).

Anyway, the list below aims to do for recruiters and hiring managers what these books do for conscientious eaters: Achieve the desired results by making better choices.  In order to achieve their goals of getting certain information out of candidates, recruiters and hiring managers need to be careful in the way they phrase certain interview questions; otherwise, they could face potential legal ramifications.

Recruiters and hiring managers should already know that any question that asks a candidate to reveal information about his or her national origin, citizenship, age, marital status, disabilities, arrest record, military discharges, or personal information is a violation of Title VII of the Civil Rights Act of 1964.

But while avoiding these subjects sounds easy enough, it’s not always glaringly obvious what questions might be construed as inappropriate – even when they seem harmless on the surface.  Below is a guideline to avoiding 10 potentially dangerous questions – while still getting the information you’re looking for.

  1. Ask this: Are you legally authorized to work in the United States?  Not that: Are you a U.S. citizen? or Where were your parents born? Questions about national origin or ancestry are prohibited as they have no relevance to the job at hand or work status. The exception to this rule, of course, is if the position specifically requires one to be a U.S. citizen (and it should state so in the job posting).
  2. Ask this: What is your current address and phone number? or Do you have any alternative locations where you can be reached?  Not that: How long have you lived here? Like the question above, this one alludes to a candidate’s citizenship. Stay away.
  3. Ask this: Are you able to perform the specific duties of this position?  Not that: Do you have any disabilities? or Have you had any recent or past illnesses and operations? You may want to know about a candidate’s ability to handle certain responsibilities or perform certain jobs, but asking about disabilities or illnesses of any sort is not the way find out (legally, at least).
  4. Ask this: Are you a member of any professional or trade groups that are relevant to our industry?  Not that: Do you belong to any clubs or social organizations? You might simply be trying to learn about a candidates interests and activities outside of work, but a general question about organizational membership could tap into a candidate’s political and religious affiliations or other personal matters.
  5. Ask this: Have you ever been convicted of “x” [something that is substantially related to the job]?  Not that: Have you ever been arrested? Questions about arrests or pending charges for jobs that are NOT substantially related to the particular job are off-limits.
  6. Ask this…What are your long-term career goals?  Not that… 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.
  7. Ask this…Are you available to work overtime on occasion? Can you travel? Not that…Do you have children? or Can you get a babysitter on short notice for overtime or travel? You might be concerned that family obligations will get in the way of work, but you can’t ask or make assumptions about family situations. (You know what happens when you assume.) Cut to the chase by asking directly about the candidate’s availability.
  8. Ask this…Are you available to work within our required schedule? Not that…What religion do you practice? or What religious holidays do you observe? Again, you might simply be trying to discern a candidate’s availability, but leave religion out of it.
  9. Ask this… Are you over the age of 18? Not that…How old are you? or When did you graduate from college? If you know a candidate’s age, you could find yourself facing discrimination charges at some point. Your only concern should be as to whether the candidate is legally old enough to work for your organization.
  10. Ask this…Is additional information, such as a different name or nickname necessary in order to check job references? Not that…Is this your maiden name? or Do you prefer to be called “Ms.,” “Miss,” or “Mrs.?” Be sure to avoid any question that alludes to a woman’s marital status – as well as anything that could be construed as a question referring to national origin or ancestry (e.g. “Your name is interesting. What nationality is it?”).

When in doubt…keep it work-related.  According to the University of Wisconsin-Eau Claire, if employers can phrase questions so that they directly relate to specific occupational qualifications, then the questions may be legitimate ones.

This post has been updated to reflect the correction of a previous error. Thanks to everyone who caught – and helped to correct – the oversight.

Mary Lorenz

About Mary Lorenz

Mary is a copywriter for CareerBuilder, specializing in B2B marketing and corporate recruiting best practices and social media. In addition to creating copy for corporate advertising and marketing campaigns, she researches and writes about employee attraction, engagement and retention. Whenever possible, she makes references to pop culture. Sometimes, those references are even relevant. A New Orleans native, Mary now lives in Chicago, right down the street from the best sushi place in the city. It's awesome.
55 comments
violione
violione

Can a employer state that perspective employees MUST live within X # of miles from the job?

cbmlorenz
cbmlorenz

 @violione The legality of that depends on a number of factors and varies by state. Your best bet is to consult with a legal advisor who is well-versed on employment laws in your state.

Joe
Joe

If we need to know not just proof of employment eligibility but PERMANENT proof of employment eligibility. How do we get at this.

Thanks

Joe
Joe

If we need to know not just proof of employment eligibility but PERMANENT proof of employment eligibility. How do we get at this.

Thanks

Larry Bradley
Larry Bradley

Several respondents said they were surprised that question 5 said it was okay to ask people if they were arrested for a crime substantially related to the job. Which makes me want to ask them, "have you ever been convicted of knowing how to read?" Go back and look at No. 5 again. It says "convicted," not arrested.

Christine
Christine

In response to # 15, "Saul", who talked about employers who use criminal history in making an employment decision. You actually CAN legally use criminal history in making a hiring decision. The employees of financial institutions like banks, etc. that are FDIC-insured are actually bonded/insured by the FDIC. They must be able to be bonded by the FDIC to work there. There are very strict rules and regulations around this. If anyone has been convicted of a breach of trust crime, i.e. embezzlement, theft, forgery, fraud, robbery, etc., they cannot be employed by the institution b/c they cannot be bonded by the FDIC. Just an interesting bit of information I thought I'd throw out there to the crowd.

Christine
Christine

In response to # 15, "Saul", who talked about employers who use criminal history in making an employment decision. You actually CAN legally use criminal history in making a hiring decision. The employees of financial institutions like banks, etc. that are FDIC-insured are actually bonded/insured by the FDIC. They must be able to be bonded by the FDIC to work there. There are very strict rules and regulations around this. If anyone has been convicted of a breach of trust crime, i.e. embezzlement, theft, forgery, fraud, robbery, etc., they cannot be employed by the institution b/c they cannot be bonded by the FDIC. Just an interesting bit of information I thought I'd throw out there to the crowd.

Katie
Katie

Just wanted to respond to a couple of the objections!
1. For #9, more age discrimination lawsuits are won than any other discrimination lawsuit. While you might be able to argue that people can graduate from college at any age, why does it really matter, if you see a gap you can always just say “explain this gap”.
2. For #5, you don't even need to ask the question if you're doing background checks, which you probably should be doing if you feel the need to ask this question for job related issues.
3. You can always ask the question and inform the candidate “the reason why I am asking is b/c my company does not have offer any sponsorship, if you require sponsorship, unfortunately we won’t be able to offer it” or something - therefore avoiding any sticky questions, just a suggestion.

Lizzie
Lizzie

To Katie above, yes most companies do run background checks to ensure a clean criminal history. However, that doesn't mean asking the question isn't still necessary! Background checks have both a monetary and a time cost associated with them. Going through a vigorous multi-step interview process only to find out that the candidate was never viable 3-4 weeks down the road is a colossal waste of everyone's time.

JOHN
JOHN

As far as the question concerning "have you ever been arrested"?. I have seen many applications that ask, Have you ever been convicted of anything.

Matt L.
Matt L.

I certainly do agree with Steve Dill (#20). Sadly though, we have to deal with the "legal"/"illegal."

For you candidates...(as Steve said) hiring managers are simply looking for someone whom is the BEST fit for the position...are YOU? In a nut-shell, that's what the interview process is about...not a matter of prying or being discriminative!

Matt L.
Matt L.

I certainly do agree with Steve Dill (#20). Sadly though, we have to deal with the "legal"/"illegal."

For you candidates...(as Steve said) hiring managers are simply looking for someone whom is the BEST fit for the position...are YOU? In a nut-shell, that's what the interview process is about...not a matter of prying or being discriminative!

Taluoola Bigham
Taluoola Bigham

You neglected to mention a big one; "in what year did you graduate?". This is obviously a no-no but a question people often ask when trying to determine the age of the candidate.

Taluoola Bigham
Taluoola Bigham

You neglected to mention a big one; "in what year did you graduate?". This is obviously a no-no but a question people often ask when trying to determine the age of the candidate.

Kristy
Kristy

I think the issue of a candadite's citizenship can be a legitimate question if it is tided a bona fide job requirement. You have to remember when you read these sorts of publications that they are written for a diverse audience. To be legally defensible it better be on your job description & truly be legitimate.

Kristy
Kristy

I think the issue of a candadite's citizenship can be a legitimate question if it is tided a bona fide job requirement. You have to remember when you read these sorts of publications that they are written for a diverse audience. To be legally defensible it better be on your job description & truly be legitimate.

Frank Savino
Frank Savino

In New Jersey it is unlawful to ask a job applicant if they are a smoker. Smoking in one's home is legal. It is OK to state that the company has a policy prohibiting smoking during work hours or in the company's premisis.

Frank Savino
Frank Savino

In New Jersey it is unlawful to ask a job applicant if they are a smoker. Smoking in one's home is legal. It is OK to state that the company has a policy prohibiting smoking during work hours or in the company's premisis.

Eugenia Kaneshige
Eugenia Kaneshige

Is the author of this article a labor lawyer? When you categorize a question as "illegal" you imply that a person could be fined or sued for asking it. Doesn't Title VII prohibit "discrimination"? And isn't a company innocent until proven guilty? A question might be construed as "evidence" of the intent to discriminate, but is it a crime in itself?

Eugenia Kaneshige

Eugenia Kaneshige
Eugenia Kaneshige

Is the author of this article a labor lawyer? When you categorize a question as "illegal" you imply that a person could be fined or sued for asking it. Doesn't Title VII prohibit "discrimination"? And isn't a company innocent until proven guilty? A question might be construed as "evidence" of the intent to discriminate, but is it a crime in itself?

Eugenia Kaneshige

Harmony Schutter
Harmony Schutter

In regards to citizenship, if the candidate is required to be a US Citizen you can also phrase it.."Per our basic qualifications, are you a US Citizen with the ability to obtain a ... Clearance", that is the only time I circumstance I have heard where you can ask it if it is a requirement (basic qualification) for the position.

steve dill
steve dill

Hiring managers are going to hire the candidate whom they feel is the best fit, no matter what "illegal" questions are asked during the interview. Candidates should focus on making a great immpression, and not worry about whether they are asked "illegal" questions by the interviewer. We have gone way too far with this politically correct manifesto in this country.

steve dill
steve dill

Hiring managers are going to hire the candidate whom they feel is the best fit, no matter what "illegal" questions are asked during the interview. Candidates should focus on making a great immpression, and not worry about whether they are asked "illegal" questions by the interviewer. We have gone way too far with this politically correct manifesto in this country.

Karla Dobbeck
Karla Dobbeck

Be careful with the question regarding arrests. In Illinois, you can only ask about convictions that have not been sealed, overturned or expunged!

Karla Dobbeck
Karla Dobbeck

Be careful with the question regarding arrests. In Illinois, you can only ask about convictions that have not been sealed, overturned or expunged!

Jason Doliveck
Jason Doliveck

#5 Legally you can only ask "have you ever been convicted of a felony for which you have not bben pardoned?"

Kuzo
Kuzo

I tried to arrange a educational meeting with the EEOC in Phoenix, Arizona about concerns of recruiters and answers to how we comply with the law. It is clear from the above that there are areas of concern. Got the total run around from the Phoenix EEOC and absolutely no answers to my questions above. Left messages on their phones, and anyone who answered did everything they could to get me off the phone and basically said "that is not my area" and could provide no help. No one would ever call back either. If anyone in the Phoenix EEOC Office that is not a lazy worthless bureaucrat, and just happy wasting taxpayer money, then please post your name and phone number so we can set something up.

Ed
Ed

Questions about arrests are not appropriate. Questions about Convictions are definitely appropriate.

Ed
Ed

Questions about arrests are not appropriate. Questions about Convictions are definitely appropriate.

Saul
Saul

Please remember that there are some States like Wisconsin that go after employers if criminal history is a factor in making an employment decision. Also I always say that it is not important to find out how old someone is. At times I have had candidates bring their age up to me while interviewing them, and I make a public statement to them assuring them that we do not make any decisions based on a person’s age or other characteristic. The only thing we look for is merit and experience.

Saul
Saul

Please remember that there are some States like Wisconsin that go after employers if criminal history is a factor in making an employment decision. Also I always say that it is not important to find out how old someone is. At times I have had candidates bring their age up to me while interviewing them, and I make a public statement to them assuring them that we do not make any decisions based on a person’s age or other characteristic. The only thing we look for is merit and experience.

Justin
Justin

Generally except under very extreme and rare circumstances, US Permanent Residents do not qualify for Secret Clearances, but rather agency checks for NON-defense positions (like a Treasury background investigation or NACI or NACLAC, none of these is a Secret). This is a common misconception, and this sort of work is about all I do here (I also function as the Assistant FSO).

Justin
Justin

Generally except under very extreme and rare circumstances, US Permanent Residents do not qualify for Secret Clearances, but rather agency checks for NON-defense positions (like a Treasury background investigation or NACI or NACLAC, none of these is a Secret). This is a common misconception, and this sort of work is about all I do here (I also function as the Assistant FSO).

Maurine
Maurine

In regards to the citizenship question, I state that we are an EEO employer. I ask if they have indefinite authorization to work in the US. If they say yes, I ask if they will need an employer to sponsor a work authorization. This puts the burden of proof in their court from the start so to speak.

Maurine
Maurine

In regards to the citizenship question, I state that we are an EEO employer. I ask if they have indefinite authorization to work in the US. If they say yes, I ask if they will need an employer to sponsor a work authorization. This puts the burden of proof in their court from the start so to speak.

Alan
Alan

Question #1: Asking a candidate if they are a US Permanet Resident is appropriate, particularly for positions that require a Secret Clearence, or when a company does not what to sponser a Visa.

Question #7: I agree with not asking a question to relate family resposibilities to the ability to work overtime. However, I ask any candidate, who my client will have to relocate, if they have children, how many and what are their ages. My clients expect to me to make sure that there are no roadblocks to relocation, like children who are high school age (especially seniors), or very young children whose grandparents live down the street. Of course i always explain to the candidate why I am asking the question. In 14 years, I have nver had anyone complain. In fact, they agree that this is an important consideration.

Question #9: The Internet is a wonderful place to get this information, if you have to have it. No need to ask a possibly legally problematic question, unless your work for ACORN.

Alan
Alan

Question #1: Asking a candidate if they are a US Permanet Resident is appropriate, particularly for positions that require a Secret Clearence, or when a company does not what to sponser a Visa.

Question #7: I agree with not asking a question to relate family resposibilities to the ability to work overtime. However, I ask any candidate, who my client will have to relocate, if they have children, how many and what are their ages. My clients expect to me to make sure that there are no roadblocks to relocation, like children who are high school age (especially seniors), or very young children whose grandparents live down the street. Of course i always explain to the candidate why I am asking the question. In 14 years, I have nver had anyone complain. In fact, they agree that this is an important consideration.

Question #9: The Internet is a wonderful place to get this information, if you have to have it. No need to ask a possibly legally problematic question, unless your work for ACORN.

Marc
Marc

Have to throw in my 2 cents!

1. Regarding asking WHEN someone graduated from College...you should NOT do it! What is relevant to the Job Interview is IF they graduated and hold the degree, NOT WHEN they achieved it. Job Descriptions are written such that it does not matter when they achieved the Degree nor how quickly they achieved the degree (5 years vs 4 years, etc). Job Descriptions simply state that the position requires the respective type of Degree. So, your questions in the interview should absolutely be relevant to the Job Requirements--and not perceived as fishing for additional information.

2. When a Job Description has an essential requirement, you can then ask that question during the Job Interview (In this example, I would stress that you make sure the essential requirement is a legal requirement). The requirement of US Citizenship does legally fall under many Job Requirements and when they are written/advertised as such, you can ask the question upfront of candidates--again, since it is an essential requirement of the position, you are entitled to ask and screen for it.

3. For those positions where a Company cannot transfer nor sponsor H1b candidates, you could ask the question as such: "This position requires eligibility to work in the United States/Canada and we are not able to transfer nor sponsor a Visa. Would this meet your expectations?" HOWEVER, you need to be consistent with asking EVERYONE this question. For example, if you don't ask candidates with the name Smith this question, but you do ask candidates with the name Singh...well, it is always best to be consistent and ask these types of questions of all candidates so as not to discriminate against one type of person in your interview process.

Marc
Marc

Have to throw in my 2 cents!

1. Regarding asking WHEN someone graduated from College...you should NOT do it! What is relevant to the Job Interview is IF they graduated and hold the degree, NOT WHEN they achieved it. Job Descriptions are written such that it does not matter when they achieved the Degree nor how quickly they achieved the degree (5 years vs 4 years, etc). Job Descriptions simply state that the position requires the respective type of Degree. So, your questions in the interview should absolutely be relevant to the Job Requirements--and not perceived as fishing for additional information.

2. When a Job Description has an essential requirement, you can then ask that question during the Job Interview (In this example, I would stress that you make sure the essential requirement is a legal requirement). The requirement of US Citizenship does legally fall under many Job Requirements and when they are written/advertised as such, you can ask the question upfront of candidates--again, since it is an essential requirement of the position, you are entitled to ask and screen for it.

3. For those positions where a Company cannot transfer nor sponsor H1b candidates, you could ask the question as such: "This position requires eligibility to work in the United States/Canada and we are not able to transfer nor sponsor a Visa. Would this meet your expectations?" HOWEVER, you need to be consistent with asking EVERYONE this question. For example, if you don't ask candidates with the name Smith this question, but you do ask candidates with the name Singh...well, it is always best to be consistent and ask these types of questions of all candidates so as not to discriminate against one type of person in your interview process.

LeeK
LeeK

#5 Try asking the question this way ---
Is there anything in your background that could prevent you from passing a background check for this position? The client will be checking for XYZ.

Justin
Justin

If your position requires US Citizenship (I can only see a few actual examples of this outside of the federal government space), you can say, "This position requires US Citizenship, as it is for the federal government and only US Citizens qualify to pass [insert government background investigation or clearance process]. Are you a US Citizen?" We also have clients who require US-born Citizens. As long as you say it is a requirement of your client, you are in the clear. Just be sure that your client knows what they are talking about!

Justin
Justin

If your position requires US Citizenship (I can only see a few actual examples of this outside of the federal government space), you can say, "This position requires US Citizenship, as it is for the federal government and only US Citizens qualify to pass [insert government background investigation or clearance process]. Are you a US Citizen?" We also have clients who require US-born Citizens. As long as you say it is a requirement of your client, you are in the clear. Just be sure that your client knows what they are talking about!

Cristina
Cristina

Are the rules the same regardless of the type of position you're hiring for? i.e. contract positions

Cristina
Cristina

Are the rules the same regardless of the type of position you're hiring for? i.e. contract positions

Tom
Tom

I'm surprised to hear the advice of asking if someone has been arrested for anything, related to the position or not. It is only appropriate to ask if they have been convicted or have any unadjudicated (pending) charges. There is specific case law that finds asking about arrests to be discriminatory.

Tom
Tom

I'm surprised to hear the advice of asking if someone has been arrested for anything, related to the position or not. It is only appropriate to ask if they have been convicted or have any unadjudicated (pending) charges. There is specific case law that finds asking about arrests to be discriminatory.

Kuzo
Kuzo

By the way...both Monster and Careerbuilder make it very difficult, and waste alot of time of customers by not having a yes or no box asking ALL candidates, are you on a Visa, if so which one.

Donna
Donna

I have to ask the question are you a citizen. Many of my clients have security clearance that requires citizenship.

Donna
Donna

I have to ask the question are you a citizen. Many of my clients have security clearance that requires citizenship.

Rob
Rob

The question in relation to citizenship status is important in my field. We are not capable of getting work visas for people to work in certain other countries and in that case I have to hire citizens of that country. It doesn't matter if they could possibly get a work visa through someone else, because if I'm doing the hiring it would be irrelevant. Though someone may be legally capable of working in the US or Canada, citizenship matters when there is no visa involved. If anyone knows a way around this I would greatly appreciate that knowledge. Until then I'll continue to ask their citizenship status.

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