It is illegal for an employer to discriminate against a job applicant because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), age, national origin, or disability. There are federal and state laws in place to prevent discriminatory employment practices. Yet, many individuals involved in the hiring process are unfamiliar with what questions they cannot ask. The same goes for many applicants who are unaware of their rights.
The following are examples of illegal and legal interview questions.
Topic | Illegal | Legal |
Work/visa status and citizenship | - Are you a US Citizen? - You sound like you have an accent; where are you from? - Where were your parents born? - What is your native language? | - Are you authorized to work in the US? If hired, you will be required to submit verification of your legal right to work in the US. *This should be asked of all applicants, not only persons appearing to speak a primary language other than English or to be foreign-born. |
Marital/Family status | - Are you married? - Is it Mrs. or Miss? - Do you have children? If so, what do you do for child care? - Are you planning to have children soon? - Have you ever been divorced? - Where is your spouse employed? | - Are you willing and able to put in the amount of overtime and/or travel the position requires? - Are you willing to relocate? |
Age | - How old are you? - When were you born? - How long have you been working? - When did you graduate? - Are you planning to retire soon? - Do you have any grandchildren? | - Are you concerned about handling the long hours and extensive travel that this job entails? - Are you at least 18 years of age? *if required - If hired, can you show proof of your age? |
Religion/creed | - What is your religion? - Are you practicing? - What are your religious holidays? | - Can you work on weekends? *Should only be asked if the position requires working on weekends |
Arrest record | - Have you ever been arrested? | - Have you ever been convicted of any crime other than a traffic violation? *Employers should check state and local laws regarding inquiries about arrests and convictions. |
Disabilities | - Do you have any disabilities? - Do you need medical accommodations? | - This job requires that you lift 25lbs and stand for 2 hours at a time. Can you perform the essential functions of this job, with or without accommodation? |
Gender/sex | - Are you male or female? - Are you gay/lesbian/bisexual? - Do you have a domestic partner? | - Do you have a preferred name or pronoun? *It is crucial that this be asked of all applicants, if asked at all. |
Race/color | - You have a beautiful complexion; where does that come from? | |
This list of questions only scratches the surface of what inquiries are permissible and illegal. As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job. That is why information regarding race, sex, national origin, age, and religion are irrelevant for determining qualifications.
Employers must also be aware of local laws that differ from federal or state laws. For example, in Austin, Texas, the city enforces a "ban-the-box" ordinance. This law prohibits covered employers from inquiring about an individual's criminal history information, including running background checks, until after a conditional offer of employment has been made. The ordinance defines covered employers as employers with at least 15 individuals who primarily work in Austin for each working day for 20 or more calendar weeks in the current or preceding calendar year.
Some interview questions seem benign but can carry legal risk. A manager may attempt to build rapport by asking where the applicant went to school. However, the answer can provide insight into where the applicant was born and the applicant's racial demographic. Interviewers should avoid asking applicants about membership in organizations, clubs, societies, and lodges. The responses may indicate the applicant's race, sex, national origin, disability status, age, religion, color, or ancestry. Again, the focus should be on whether the person is qualified for the job.
Employers should train anyone in the hiring process about what is permissible to ask during an interview. One more time for the people in the back: THE INFORMATION OBTAINED AND REQUESTED THROUGH THE PRE-EMPLOYMENT PROCESS SHOULD BE LIMITED TO THOSE ESSENTIAL FOR DETERMINING IF A PERSON IS QUALIFIED FOR THE JOB.
Applicants should know their rights before heading into an interview. Suppose, during an interview, an interviewer asks an illegal question. In that case, an applicant can choose to (i) answer it, (ii) side-step it, or (iii) question the relevance. Later, the applicant may file a charge of discrimination with the EEOC.
This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-attorney relationship between the Texas Hospitality and Non-profit Law Center, PLLC and any recipient.