Interviews: What’s Illegal to Ask?

Raffa Financial ServicesRaffa Financial Services on 12/23/2021

Federal and state laws generally require employers to limit their interview questions to those that are essential for determining if a person is qualified for the job. In general, employers should not ask about race, gender, religion, marital status, national origin, or age because that information is irrelevant in determining if an applicant is qualified for the job. Also, federal law expressly prohibits employers from making pre-employment inquires about an applicant’s disability.

Illegal interview questions are those that single an individual out for reasons that are contrary to employment anti-discrimination laws. It is prohibited to ask these questions in any context, but if a question has discriminatory implications or employment is denied based on the applicant’s answer, the employer may have broken the law. As an overall rule, employers should limit their interview questions to those that are job-related and should discourage applicants from providing unsolicited personal information.  

The following are examples of illegal or inadvisable questions and some acceptable alternatives.

Subject: Marital status/family

  • Illegal questions: What is your marital status? What does your husband/wife do? Do you plan to have a family? How many kids do you have? How old are your children? What are your child care arrangements?
  • Acceptable job-related questions: Employers may ask whether an applicant can meet specified work schedules or has activities or commitments that may prevent him or her from meeting attendance requirements. These questions must be based on a business necessity and asked of all applicants for the position. For example—what hours can you work? Can you work on weekends and holidays? Are you willing to relocate if necessary? Are you willing to travel as needed for the job? Are you willing and able to work overtime as necessary?

Subject: Economic status

  • Illegal questions: Do you own a car? Do you rent or own a house? What is your credit rating? Have you ever declared bankruptcy? Have your wages ever been garnished?  
  • Acceptable job-related questions: Questions about the financial status of an applicant should be avoided unless the information is essential to the job. For example, rather than inquiries related to an applicant owning a car, an employer may ask if the candidate will have problems getting to work by 8 a.m.

Subject: Pregnancy

  • Illegal questions: Questions relating to pregnancy and medical history concerning pregnancy. For example—are you able to have children? Do you plan to have more children?
  • Acceptable job-related questions: General inquiries about job history and tenure or anticipated absences that are made to males and females alike.

Subject: Physical health

  • Illegal questions: Employers generally cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer. For example, the following interview questions should be avoided—do you have any health conditions? Are you taking prescribed drugs? Have you ever been treated for a mental health condition? How many sick days did you take last year? Have you ever filed a worker’s compensation claim?
  • Acceptable job-related questions: An employer may ask an applicant whether he or she is able to carry out the essential functions of the job (with or without reasonable accommodation), if this question is asked of all applicants. Employers are permitted to ask limited questions about reasonable accommodations if they rationally believe that the applicant may need accommodations. This is also true when the applicant has disclosed a need for accommodations.

Subject: Name

  • Illegal questions: Any inquiries about an individual’s name that would indicate marital status, birthplace, ancestry or national origin. For example—you have an unusual name, what does it mean?
  • Acceptable job-related questions: It’s permissible to ask whether an applicant’s work records are under another name. For example – Have you worked for this company under another name? By what name do your references know you?

Subject: Education

  • Illegal questions: Any question that specifically asks about the nationality, racial or religious affiliation of schools attended.
  • Acceptable job-related questions: Questions related to the academic, vocational, or professional education of an applicant, including the names of the schools attended, degrees/diplomas received, and courses of study. For example—what is the highest level of education you have completed?

Subject: U.S. citizenship

  • Illegal Questions: Asking whether an applicant is a U.S. citizen.
  • Acceptable job-related questions: Because of potential claims of illegal discrimination, employers should verify eligibility to work in the U.S. after an offer to hire has been made. Applicants may be informed of this requirement in the application process by adding the following statement on the employment application: "In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the U.S. and to complete the required employment eligibility verification document form upon hire."

Want to keep reading?

Download the full article


Is your benefits broker also a compliance consultant? What about a trusted business partner? Are you confident your policies and processes are doing what they need to ensure that your company—and your employees— are healthy and productive?  There’s so much more to employee benefits than policies and premiums. A great benefits broker will make sure you, your employees, and your business are protected. Is your agent looking out for you?

Content provided by Zywave

Photo by fizkes

Want our business blogs delivered to you?

Enter your email address below to start receiving updates in your inbox!