Don’t Ask

Certain questions, if asked in job interviews, are considered discriminatory and could set you up for costly legal trouble

While in college I went to apply for a job at a car wash. My “interview” consisted of looking up at the owner, who fired questions at me while he stood on a step ladder and reached up to work on a piece of machinery suspended from the ceiling.

“Do you smoke?” No. “Do you drink?” A little. “Have you ever been arrested?” No. “Do you like girls?” Yes.

Can you pick out the questions that today could land this fellow in court? Whether or not you can, it pays to think long and hard about the kinds of questions you ask of job applicants. Many small-business owners still don’t know the rules, which are not the same as they were 30 years ago.

The interview I just described took place in 1976, but just two years ago, a restaurant owner interviewing my 26-year-old daughter for a chef job asked her, “Do you plan on having children anytime soon?” In other words, “If there’s a chance you’re going to take a maternity leave or quit to become a full-time mother, I may not hire you.”

My daughter didn’t sue for gender discrimination, but she did decide on the spot that she would never work for that man (and, in my unbiased opinion, that’s his loss).

Yes, things have changed. There may be things you’d like to know about a prospective employee that federal law says you have no business asking about.

For example, you might like to know if a person is in good health or has a condition that might mean using lots of paid sick days. You might like to know if a woman seeking employment will have family responsibilities that might limit her ability to work long hours when called for.

But it’s against the law to make hiring decisions based on factors like those, and it’s not permissible to ask about them in job interviews. Laws on employment and discrimination are complex, and you should not decide what to ask, or not, based on what you read here. With that caveat, here are some areas and some specific questions you should avoid, as gleaned from a variety of authoritative sources.

Age. You might be able to estimate a person’s age from dates on his or her resume or application, but you still can’t ask about age during the interview. And don’t think you can get at the answer through the back door by asking something like, “When did you graduate from high school?”

Ethnicity. It is against federal law to make hiring decisions based on race, national origin, or ancestry. Even if you’re asking out of innocent curiosity (“What kind of accent is that?”), such questions are considered discriminatory. Some other questions that could lead to trouble are: “Where were your parents born?” or “What do you think of the situation in the Middle East?” You shouldn’t ask what languages a person speaks, though if a certain language is necessary to the job, you can ask about it specifically.

Citizenship. This gets a little tricky. It’s permissible to ask, “Are you a U.S. citizen?” or “Do you have a valid working visa?” because it’s against the law to hire someone who can’t say yes to those questions. But you can’t ask about the actual citizenship of non-U.S. citizens – only their work status.

Religion. You can’t ask questions like, “Are you (Christian, Mormon, Jewish)?” “Do you go to church?” “Do you believe in God?” However, it’s permissible to ask if the person has religious beliefs that might require special accommodation on the job.

Health or disability. You can ask if a person has any condition that might require reasonable accommodation at work. You can tell what the job requires and ask the person if he or she can do the work. But you can’t ask specific questions about disabilities. Note that under the Americans with Disabilities Act, disability includes not just physical limitations but also alcoholism, drug addiction and mental conditions. Questions that would be out of bounds include: “How is your health?” “Do you have a hearing impairment?” “Have you ever filed a workers’ compensation claim?”

Criminal history. Most experts advise against asking questions about arrests – only convictions. In part this is because African-Americans are arrested statistically more often in proportion to the population than, for example, Caucasians. If asking about convictions, it is best to stick to matters related to the job. For instance, if the person will handle money, you can ask about convictions for embezzlement or theft.

Marital status/gender. It may seem sensible and innocent to ask if an applicant is married or single, but that’s not allowed. In particular, it’s improper to ask a woman whether she is pregnant (or plans to become pregnant).

Sexual orientation. Discrimination based on sexual orientation is illegal, and so it’s not permissible to ask, “Are you gay?” or “Are you a lesbian?”

Get good advice

Some advisors suggest that interviewers make up a standard list of questions to ask of every applicant, so they can’t be accused of asking, for example, one set of questions for men and another for women.

Standards on discrimination may vary from state to state, and court rulings are constantly defining and refining what is and is not permissible to ask. To make sure you’re on solid ground when conducting job interviews, it pays to consult with a legal advisor on whether the questions you plan to ask are legitimate.



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