Top Interview Questions HR Should Never Ask to Avoid Legal Trouble

To ask or not to ask? That is the question.

And the answer is no—that is, if you are an employer interviewing a job candidate and you plan to ask about a candidate's race, gender, age, religion, sexual orientation, disability or other sensitive topics.

Employers use interviews to find out if a candidate will be a good fit for a job and for the company. However, HR and hiring managers should be aware of questions that are illegal, unethical or that could stray too far into a grey area, according to HR and employment law experts.

Understanding where to draw the line is important for employers to avoid accusations of unfair hiring practices or lawsuits.

The Risks of Certain Interview Questions

"There are a bunch of questions that are just simply taboo to ask in an interview, and they all relate to discrimination and have nothing to do with the candidate's ability to do the job," explained Jana Tulloch, an HR consultant with DevelopIntelligence, a technical software development company headquartered in Boulder, Colo. "Any question that refers to an individual's sexual orientation, marital or family status, religion, and so forth are no-gos."

For example, Tulloch said, during an interview an employer should never ask "are you planning on starting a family soon?" Employers also should never ask "how old someone is or what ethnicity they are. Candidates can easily claim discrimination if they feel that they were not selected based on their religious beliefs, sexual orientation or pregnancy."

Additionally, "employers need to be sure that their interview questions are the same for all candidates, and that [questions] relate strictly to the knowledge, skills and abilities required to be successful in the role," Tulloch said. "There are some questions around physical abilities that may be asked, as long as [physical ability] is deemed a bona fide requirement of the job."

Charles Vethan, president and CEO of Houston-based Vethan Law Firm, cautioned that it's wise for employers to know state and federal laws concerning interview questions and procedures.

"Taboo topics are not blatant violations of any law, but they may have the tendency to lead the conversation into illegal territory, or may place the employer in a bad public relations light," Vethan said. Some examples of taboo topics include:

• Alcohol consumption.
  
• Dating.
  
• High school graduation date.
  

Common Questions That Could Get HR in Trouble

Other troublesome questions, according to Vethan and David Weisenfeld, a legal editor with Brightmine™ HR & Compliance Centre, include:

• "We are hiring because our business is about to become very busy. Do you have any plans that might interfere with your ability to work full time over the next year?"
  
• "Are you married? Will you be starting a family any time soon?"
  
• "Your name is very exotic; where are you originally from?"
  
• "This job requires the ability to lift things heavier than 20 pounds. Have you had prior medical problems that would prevent you from being able to do so?"
  
• "Did you take any sick days or extended medical leave last year?"
  
• "Do you have children? What kind of child care arrangements have you made?"
  
• "What year did you graduate college?"
  

And, according to this LinkedIn article, there are many more troublesome interview questions.

Best Practices for Safe and Legal Job Interviews

On the other hand, there are questions that may make job seekers nervous but that are completely acceptable to ask. Some of these questions delve into whether a job candidate can meet the requirements for the position, according to Weisenfeld, who specializes in recruiting and hiring topics, including pre-employment screening, interviewing and selection.

These questions may include:

• "Will you be able to meet the attendance requirements for this job?"
  
• "Where do you live?" (An employer may have a legitimate concern if an applicant will have an excessively long commute to work.)
  
• "Can you perform the job, with or without a reasonable accommodation?"
  

According to another LinkedIn article, there are more such questions.

The bottom line is: When interviewing job candidates, employers should stay focused on the job being interviewed for and determine if candidates meet the criteria for that position. Anything beyond that could be venturing into unwelcome and potentially litigious territory.

Dawn Onley is a freelance writer based in Washington, D.C.