Here is a guide for the interviewer. This article is intended to provide a general overview of legal and practical requirements, and does not constitute legal advice. To learn more about the legal details of employment law, both federal and your state, please consult your attorney.
What questions are clearly legal or illegal? If the question has nothing to do with the job, then do not ask it! Your primary responsibility is to find the person most qualified to handle the position. You should not ask questions unrelated to job performance.
Do Not Discriminate. Let’s begin here: Questions about height, weight, age, national origin, marital status, political beliefs, religious beliefs, dependents, race, birth control, birthplace and non-job-related disability are strictly off limits.
Name. Yes, you may ask a person to state his or her name during an interview! It is permissible to ask if it is necessary to have any other information regarding the applicant’s change of name in order to check prior employment history. You may not ask for a female applicant’s maiden name, or the original name of an applicant after it has been legally changed, if this information is not necessary to check references. It is permissible to ask questions regarding whether the applicant has ever worked for your company under another name, or whether any of the applicant’s relatives currently work for your company.
National Origin. Because you may not discriminate based on national origin, an interviewer may not ask an applicant where he or she was born or the birthplace of his or her relatives. You may not ask whether the candidate’s parents or spouse are native-born or naturalized citizens. It is also unlawful to ask the name of the next of kin or even how the applicant learned a second language.
It is permissible, however, to ask the applicant to state his or her place of residence and length of residence at that address, and whether the candidate is a US citizen or a resident alien with the right to work in the US. The question may be asked as to the various languages he or she speaks as long as the question is relevant to the job.
Religion and Political Beliefs. You should not ask an applicant questions concerning his or her religion, church membership, or which holidays he or she observes. Questions regarding political beliefs or affiliations are also impermissible. When it comes to character references, do not ask for references from an applicant’s pastor or religious leader. It is legal, however, to ask about an applicant’s willingness to work on Saturdays or Sundays, if the job so requires.
Race. You should not ask or record the race of an applicant, nor should you ask or record the color of his or her skin, eyes, or hair. You also should not require photographs of an applicant, although it is permissible for employers to record this information for identification purposes following the hiring of an employee.
Sex. Take special care in wording questions that may allege sexual discrimination. For example, do not ask about an applicant’s change of name, maiden name, or original name, current or previous marital status, or preferred form of address, i.e. Miss, Mrs., or Ms. Questions regarding the spouse, number and names or ages of children or dependents, reproductive ability or methods of birth control also may expose your company to claims of discrimination .
Age. The Age Discrimination Act prohibits discrimination in employment against anyone over the age of 40. Actually, it is permissible to ask the age of an applicant, although if age discrimination is later alleged, the fact the interviewer seemed concerned with the applicant’s age could cause a potential plaintiff or government agency to assume that the reason for asking the question was to discriminate on the basis of age.
Health. The Americans With Disabilities Act prohibits inquiries into an applicant’s health status or medical history until a conditional offer has been made. The ADA requires employers to reasonably accommodate the needs of qualified employees with a disability, unless to do so would work an undue hardship on the employer.
Height and Weight. Imposing minimum height requirements can have the effect of discrimination against women and Asian Americans. If physical strength is important, it can be measured without reference to height or weight.
Military History. Most questions concerning military history are illegal, unless the job specifically requires a military background. You should not ask in what branch of the military the applicant has served or what type of discharge he or she received. You can usually ask, however, whether the candidate has military experience in the Armed Forces.
Education You may ask if an applicant is a high school graduate (if the question is job-related), and you can ask the candidate to detail his or her educational history.
Summary. It is essential to be very careful when it comes to employment discrimination during the interviewing process. In addition to federal laws, state laws are may apply in issues such as marital status, smoking away from the job, and military status. If you are concerned about your interview questions, consult the Equal Opportunity Commission, your state employment organization, or your attorney.
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