The interview and hiring process can be a breeding ground for employment law violations. State and federal anti-discrimination laws prohibit the use of certain characteristics as hiring criterion, such as age, gender, and race. How you phrase a seemingly harmless interview question can create serious legal ramifications for your organization. It is important for counsel and employees conducting interviews to understand the boundaries of these laws and the potential for violations during the hiring process.

1. Never ask a woman (or man) their age.

Age discrimination covers all applicants and employees over 40 years of age. Interviewers should avoid any question that could lead the interviewee to believe that his or her age will play a role in your hiring decision. While maturity is essential for most positions, it is important not to make an assumption about a candidate’s maturity based on age. Accordingly, unless you are legally obliged to confirm that an interviewee is of a certain age, asking how old he or she is is never appropriate. Similar inquiries, such as graduation years and retirement plans, should also be avoided as they could be seen as an end run to the interviewee’s age.

2. Don’t exacerbate a disability (actual or perceived).

The ADA prohibits discrimination against any qualified individual with a disability during the hiring process. Beyond physical impairments, chronic illnesses such as AIDS or cancer and mental conditions such as depression, obsessive-compulsive disorder or schizophrenia are also classified as disabilities. Discrimination may include treating an applicant less favorably because he or she has a history of a disability or denying employment opportunities to an applicant who truly qualifies for the position. Interviewers should never ask about an applicant’s disability (actual or perceived) or medical history. Even if an applicant volunteers information regarding a health condition, interviewers should not follow up with questions related to the condition. If the disability is a genuine concern, simply ask if he or she is able to perform the essential functions of the job. 

3. Stay away from questions concerning national origin, ethnicity and citizenship.

Questions and comments about an applicant’s name, appearance, language or immigration status can be problematic. Certainly, you want to be sure that a candidate can legally work for you, but it's important to be careful how you determine that information. Employers should not ask about immigration status or for additional documentation beyond what is legally required to verify employment eligibility (typically Form I-9). Similarly, asking an applicant about his or her proficiency in English or other languages can have discriminatory implications, unless particular language proficiencies are a bona fide occupational qualification (BFOQ).

4. Avoid discussing “gene”alogy.

On more recent grounds, the Genetic Information Nondiscrimination Act (GINA)[2008] prohibits employers from discriminating based on genetic information. This includes questioning an applicant or requesting information about an individual’s genetic tests, the genetic tests of their family members, genetic disorders, and history of family illnesses, as they have no bearing on an applicant’s current ability to work.

5. Pregnancies are off-limits.

It is no secret that gender cannot be used unreasonably to justify unequal treatment in the workplace. But it is important not to ask questions that sound loaded with an assumption. Avoid framing questions from a gender standpoint (e.g. “How do you think you’ll compare to the men/women who’ve held this position?”). Employers also cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers. To defuse any suspicion of discrimination, interviewers should avoid questions about a past or current pregnancy as well as questions pertaining to an applicant’s plans for a future pregnancy. Ultimately, you want to invest your time in a candidate that will stick around, but you can't ask a woman to share her pregnancy plans, or lack thereof, with you. Discuss her general plans for the future to gauge her commitment level, baby or not.

6. Steer clear of questions about physical attributes.

With the potential implications of discrimination based on race, color, sex, gender identity, pregnancy, age, ethnicity, height, weight or disabilities, questions or comments about an applicant’s physical attributes are better left unsaid. Even comments meant to flatter, break the ice, or draw a connection are not worth the risk. Again, because these characteristics have no bearing on job performance they are often magnified under the discrimination microscope. If certain physical metrics are essential to job performance (e.g. heavy lifting), ask only if the candidate can perform the required tasks.

7. Leave religion out of the conversation.

Religion is a subject that should be treaded upon lightly at the office, and even more so in interviews. Religious discrimination occurs where an employer refuses reasonable accommodation of an employee's religious practices or attire. To be sure, questions regarding religious practices, observing religious holidays, and religious garb and grooming should be avoided during an interview. As a general rule of thumb, interviewers should strive to phrase questions as if they were being read from the employee handbook. Instead of asking which religious holidays the interviewee observes, simply ask if he or she is able to work the recommended schedule.

8. Refrain from “honoring” a veteran.

Federal law prohibits discriminating against applicants with a veteran or active military status. Interviewers should avoid asking veterans about their service and whether they were honorably discharged. Instead ask them how their experience in the military could benefit your company. Additionally, even though losing an employee to military service can be disruptive, do not ask an interviewee if he or she is a member of the National Guard or Reserves; again, just ask about any upcoming events or obligations that would require an extensive time commitment away from work.

9. Don’t get “personal.”

Personal questions are the most difficult to abstain from because of their conversational nature, however, some states prohibit discrimination based on marital/familial status, sexual orientation and gender identity. While these questions can reveal much about a candidate, it’s not directly related to their performance in a position, and consequently, it’s off-limits. If these laws apply, avoid asking about spouses, partners, children, and living arrangements. Keep in mind that the more strict and expansive law (state or federal) applies.

10. Resist the temptation to be “social.”

Think you remember the name from your club’s membership directory? A familiar face from a political gathering? Resist the temptation to ask an interviewee about his or her membership to clubs and social organizations, as well as political affiliations. While your intentions may be genuine, it may lead them to believe their political beliefs and/or social status are being used as a proxy for their ability to perform on the job.

If you’re unsure about the legality of a question, ask yourself this: Without making unreasonable assumptions, does the characteristic mean that the person cannot do the job well without disrupting the work environment? If the answer is no, there is no reason to ask the question or base employment decisions on it.