Staying legal during the interview process: What questions to avoid
2025-01-10 | Blog
January is typically the peak hiring season for companies seeking to fortify their teams and propel growth. Having finalized 2025 budgets and goals, hiring teams are eager to get rolling and increase headcount.
Hiring the right candidate is one of the most important responsibilities that HR professionals and managers have. Having a well-structured interview not only helps identify the best talent but also ensures compliance with employment laws.
Unfortunately, even the best intentions can lead to legal risks if the wrong questions are asked during an interview. According to software company Greenhouse, over one-third of job candidates experience discriminatory interview questions about their age, race or gender.
Why certain questions are off-limits
Federal and state laws prohibit discrimination in hiring based on characteristics such as race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age, disability or genetic information. Asking questions related to these protected characteristics can unintentionally suggest bias or lead to claims of discrimination.
By focusing on the candidate’s qualifications, experience and ability to perform the job, you not only create a fair process but also protect your organization from potential legal liabilities.
Questions to avoid
Here are some common areas where questions can cross the line and what you should avoid asking:
Age
- Avoid asking: “How old are you?” or “What year did you graduate from college?”
- Why: Age is a protected characteristic under the Age Discrimination in Employment Act (ADEA).
- Ask instead questions that focus on skills and qualifications: For example, “Tell me about your experience with .”
Marital or family status
- Avoid asking: “Are you married?” “Do you have kids?” or “Do you plan on having children?”
- Why: Questions about family status can lead to claims of gender discrimination or bias against caregivers.
- Ask instead: “Are you available to work the schedule required for this position?”
Religion
- Avoid asking: “What religious holidays do you observe?” or “Do you go to church on Sundays?”
- Why: Religion is a protected characteristic under Title VII of the Civil Rights Act.
- Ask instead: “Are you able to work the schedule required for this position?”
Disability
- Avoid asking: “Do you have any disabilities?” or “Have you ever been injured on the job?”
- Why: The Americans with Disabilities Act (ADA) prohibits discrimination based on disability.
- Ask instead: “Are you able to perform the essential functions of this job with or without reasonable accommodation?”
National origin
- Avoid asking: “Where are you from?” or “What’s your native language?”
- Why: National origin discrimination is prohibited under Title VII.
- Ask instead: “Are you legally authorized to work in the United States?”
Gender or sexual orientation
- Avoid asking: “Do you identify as male or female?” or “What’s your partner’s name?”
- Why: Questions related to gender and sexual orientation may violate anti-discrimination laws.
- Ask instead questions that focus on professional qualifications and experience.
Arrests or convictions
- Avoid asking: “Have you ever been arrested?”
- Why: Questions about arrests may lead to claims of racial discrimination, as arrest records are not always indicative of guilt.
- Ask instead: “This role requires a background check. Are you comfortable proceeding with one?”
Tips for staying legal and professional
Focusing on qualifications is key to creating a positive and legally compliant interview process to build trust with candidates. Follow these tips to avoid inappropriate questions and safeguard your company.
- Stick to the job description: Every question should directly relate to the skills and qualifications needed for the role. Review the job description before the interview to ensure your questions are aligned.
- Don’t collect irrelevant personal data: Be cautious about collecting personal information that isn’t relevant for employment purposes. Stick to what’s legally required or job-related.
- Use structured interviews: A standardized list of questions for all candidates helps reduce bias and ensures fairness.
- Train your team: Provide training to managers involved in the interview process on what to ask and what to avoid.
- Know your state laws: Some states have additional protections that go beyond federal requirements. For example, many states restrict questions about salary history or credit history.