by Brenna Johnson 

Hiring new employees is never easy. It takes time and money to find qualified applicants, review their resumes, select your finalists – and then ask meaningful questions to determine which of these individuals is the best fit for your company.

Then, there are obstacles inherent in the interview itself, not the least is knowing which questions you can’t ask in an interview. In this blog, we’ll highlight a few of the questions that could lead to allegations of discrimination – and a potential lawsuit against your company.

Keep in mind, you can’t ask about age, ancestry, citizenship, credit rating, criminal record, family status, gender, military discharge, religion, or sexual orientation. Legal problems can arise if you do. Additionally:

  1. Don’t ask whether a candidate is a citizen of the United States – or even initiate small talk by asking where a candidate was born. Do ask whether a candidate is authorized to work in the United States.
  2. Don’t ask, “What is your native language?” It’s OK to ask whether a candidate speaks a particular language required on the job.
  3. Don’t ask questions related to age. You can’t ask how old a candidate is, when he or she graduated from school, or his or her date of birth. Don’t risk running afoul of age discrimination laws. You are allowed to ask whether someone is over the age of 18 to determine whether he or she is legally eligible to perform a job.
  4. You can’t ask whether a candidate is married, if he or she has children, or whether she plans to get pregnant. You can ask about long-term career goals and whether a candidate is able to work overtime or travel on short notice.
  5. Don’t ask about an applicant’s health or medical history, or about physical or mental disabilities. You can’t ask whether he or she has filed a worker’s compensation claim. You can ask about an applicant’s ability to perform job-related functions, and you can respond to a request for “reasonable accommodation” as required under the Americans with Disabilities Act.
  6. Don’t ask candidates to supply user names or passwords for social media accounts, or to access their accounts in your presence.
  7. Don’t ask about criminal background on your initial employment application. Don’t ask whether an applicant drinks socially, smokes or uses prescription drugs.
  8. Don’t ask whether a candidate received an honorable discharge after military service.
  9. Don’t inquire about religious beliefs. Rather, ask whether the applicant is available to work on weekends and/or holidays. You don’t want to ask about clubs or social organizations an individual may belong to, either.
  10. Don’t inquire about financial status or credit rating.

Focus your interview on the experience, behaviors, and skills needed to perform the job.  If the candidate brings up a “forbidden” topic, i.e., the need for a flexible schedule because he or she has children in school, it’s best to respond to the question, then steer the conversation away from that topic. After all, what’s really important is whether the candidate can do the job.

Brenna Johnson
Brenna Johnson is an Employment Law Attorney,Workplace Investigator and Human Resources Consultant. Brenna is devoted to assisting California employers navigate California’s employment and labor laws.