Job Interviews - What Not to Ask!

3/15/2022

Question:  We are hiring for several new positions.  Are there questions I should not ask?  How can I avoid liability during the interview process?

Response:  When conducting job interviews, it is natural to engage in some chit-chat and small talk.  This can help break the ice and give you a sense of the applicant’s personality.  At the same time, questions that are not related to the job position can get you into legal hot water.

In the U.S., it is unlawful to discriminate against job applicants based on any protected category.  The current list of protected categories, according to the Equal Employment Opportunity Commission, is race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, and genetic information (including family medical history).  If, during a job interview, you discuss information related to any of these protected categories, it could be considered discriminatory – especially if the applicant does not get the job.

This is harder than it looks.  For example, take the following, innocent-sounding questions:

  • I went to Lewiston High School too!  What year did you graduate?  (could implicate age if over 40)
  • Do you have young children at home?  (could implicate sex, if you assume women with young children do not want to travel or work overtime)
  • I’m trying to place your accent.  Where are you from?  (could implicate national origin)
  • I’m sorry to hear your aunt passed away.  Was it cancer?  (could implicate family medical history)

It is possible the applicant may volunteer information related to a protected category.  For example, the applicant may list religious interests on his/her resume, or may be a member of a club or professional organization affiliated with a certain nationality.  In that case, it is low risk to discuss those interests.  Nonetheless, the conservative approach is to steer the conversation toward topics that are directly job-related.

For the record, the above discussion reflects how to avoid exposure under the current state of the law.  I think the proliferation of protected categories, and the petty tyranny of the EEOC, have harmed workplaces more than helped. So, before you start throwing out the interesting questions on your interview sheet, remember that civil disobedience is an American tradition. 

Finally, if you would like to interview pro-freedom candidates who are the least likely to take offense to small talk, consider looking for your next employee on RedBalloon.work.

May your interview questions be productive, and never questionable,

Laura, the Labor Lawyer 

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to [email protected]  Such questions may be used for general edification in this column.