When interviewing new hires, developing rapport is a good sign that makes it easy to get into the flow of conversation. Unfortunately, that can get you into some hot water, since certain questions are illegal to ask during interviews. Many seemingly innocuous questions are illegal, leading people to ask them without realizing or noticing they are doing it.
Regardless of how friendly your conversation is going, these are some questions to avoid, as well as ways to work around them to get the information you want about the candidate. The following questions are either illegal or highly inadvisable, as the courts or regulatory agencies could deem them to be indirectly unlawful. They may also be illegal if they are asked with the intent to discriminate against a protected class. While the intent is hard to prove, you should avoid the questions regardless.
Do You Drink Alcohol?
You don't want an employee getting drunk then dragging themselves late to work while hungover. However, it's illegal to ask this under the Americans with Disabilities Act, as it might encourage somebody to reveal that they are a recovering alcoholic.
It's even illegal if you're asking because you want to know whether you can invite them to happy hour. Save that question to ask after you’ve given them the job. It is, however, legal to ask about DUI convictions if you are hiring somebody who will need to drive as part of their job.
Do You Have Children?
This question seems innocuous and can come up during chit-chat, but it is actually illegal to ask. First of all, it's a violation of the Pregnancy Discrimination Act, which forbids discrimination based on pregnancy. You also can't ask anyone if they plan to have children, especially if they are women.
It's reasonable to have concerns about availability and attendance if somebody is a parent. Instead of asking if they have children, you can ask things like whether they are available to do overtime, how well the job fits in their overall goals, and what hours and days they are available to work.
Where Are You From?
It’s a normal question to ask people where they’re from if they have an accent. However, during an interview is not the time or place to do that. It is a violation of Title VII of the Civil Rights Act, which prohibits discrimination based on national origin. It doesn't matter whether you intend to use the information. It’s still illegal to ask and could trigger your subconscious biases.
You can, and indeed must, ask all interviewees if they can legally work in the United States. Also, you can't ask if they speak other languages unless it's relevant to the job.
When Was The Last Time You Used Drugs?
There are two problems here. First of all, it is illegal under the ADA for you to ask about past drug use, which is the same issue as asking somebody if they drink. This question could force recovering addicts to discuss their past history. You can legally ask about current drug use, though that’s better left for a post-offer drug test. The other issue is that if you don't specify illegal in any question about drugs, it could be construed as asking about medical conditions.
How Old Are You?
The Age Discrimination in Employment Act protects people over 40 from discrimination based on age. It is illegal to ask the person their age except in specific circumstances.
You also can't ask anything that you could use to calculate their age, like the year they graduated from high school or how long they have been married.
There is one exception: If you are selling age-restricted substances, your frontline employees need to be of appropriate age. For example, a barkeep cannot be under 21. In this case, if the person looks suspiciously young, you can ask them about their age and ask them to prove that they are 21 or over.
Have You Ever Been Arrested?
It's very reasonable to want to know if your prospective employee has ever stolen from a past employer, but you should obtain this information through a background check.
Asking about arrests is illegal because it often ties into racial discrimination by law enforcement since black people are more likely to be arrested than white people. If the person was acquitted, then they should not be judged. You can, however, ask about past convictions and might be able to get away with asking about recent events that might be relevant to the job.
How Much Do You Weigh?
Not only is this a rude question, but it may violate the Americans with Disabilities Act if the obesity stems from a medical condition.
You can ask whether the person can meet the job’s physical requirements, and in particular very edge cases, weight might be relevant. Working at a ranch requires the physical capability to wrangle animals but that is a rare situation. In most cases, it's okay to ask about their capability to do the work, but not weight. Don’t assume somebody on the heavy side cannot do the job you are hiring them to do.
The best way to avoid accidentally asking an illegal interview question is to keep all of the questions you ask directly and strictly related to the person's ability to do the job. Small talk can lead to some hazardous territory. Sticking to the relevant things avoids asking these and other illegal questions and potentially being sued by an applicant who perceives discrimination, whether it is there or not.
