By Don Goldstein

Photo by Jon Tyson on Unsplash

You might go your whole career and never be asked an illegal job interview question—but it does happen on rare occasion. In this post, you’ll learn how to identify illegal interview questions and how to handle it if you’re asked one.

The first thing to know is that there are basic legal frameworks that come into account when discussing illegal job interviewing questions. Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees on the basis of race, color, religion, sex, and national origin. This law extends to the hiring process as well. Other federal laws that come into account are the Age Discrimination Act of 1975, the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act of 1990. Additionally, there may also be fifty different sets of state laws that deal with this issue and a number of exceptions, gray areas, and issues of interpretation. Because of the complex nature of these intersecting legal systems, I’ll be addressing these laws in their broadest and most usual applications in this post.

Illegal Interview Questions

Here is a list of generally agreed upon interviewing questions that are illegal and shouldn’t be asked:

1. Do you have children?
2. Do you plan on having children?
3. Are you pregnant?
4. What kind of childcare arrangements do you have/need?
5. Are you married?
6. Who do you live with?
7. What does your spouse/partner do for a living?
8. What was your maiden name?
9. Are you a United States citizen?
10. Where were you or your parents born?
11. What is your native language?
12. What religious holidays do you celebrate?
13. What is your height and weight?
14. Do you have an illness?
15. Do you have a physical or mental disability?
16. Do you use drugs, alcohol, or smoke?
17. What is your sexual preference?
18. Have you ever been arrested?
19. How old are you?
20. What year did you graduate from high school?
21. How long do you plan to work until you retire?

In my very long career, the only illegal question that I ever recall being asked was #21 and in a slightly different way. I was past 60 at the time and the conversation unfolded like this:

Question: If we hire you, how long would you plan on staying?
My Answer: I have no plans to retire.

(To be clear, this did not happen at the interview for my current position at the Graduate Center.)

As you might imagine, the answers to these questions can be used as a basis to discriminate against candidates in myriad ways. However, just because they are illegal does not mean they never get asked, and it is also not illegal for you to answer the question. The Illegal Interviewing Police are not going to swoop down and arrest you and the interviewer. There is a legal remedy of filing a complaint through the Equal Employment Opportunity Commission, but it is hard to prove, takes a ton of time to process, and the remedies are very mild, so most people don’t go this route.

Determining How to Respond

In developing an alternative strategy, it is important to try to understand why an illegal question is being asked. Here are a few potential reasons:

The interviewer is engaging in discriminatory behavior

It could be that the company is trying to uncover information that actually could be used to discriminate against you. In that case, for me, it would be such a red flag that I would not want to work for that company.

The interviewer is unaware they’re asking an illegal question

It could be that the interviewer is unaware that a particular question is potentially discriminatory. Maybe it’s a start-up without an established HR department or an interviewer who has been pressed into service because the regular person is out sick. In that case, you might try to discern the reason behind the question such as in the following scenario:

Q: Do you have little children? What childcare arrangements do you have for them?
A: I don’t have any obstacles to carrying out the requirements of the position.

Another possible response could be to state simply that you are not comfortable answering that question.

The interviewer is just trying to make conversation

Maybe the interviewer is just breaking the ice and making chit-chat. This circumstance is particularly applicable to the Campus Visit of an Academic Job Search. During that visit, it is customary that the candidate will have a number of one-on-one sessions with other faculty, administrators, and even students. There could be a question like:

Q: What does your partner do? (The person may just be curious or might even wish to help find a job for your partner.)
A: I’m not totally sure what my partner will be looking for, but if I do get the position, I would love to speak to you about job possibilities for my partner.

This might look to be very innocent and the person who asked it might not even perceive that this meeting is part of the interview process, but if the questioner has any input in the eventual job hiring decision, it is an interview, no matter how informal.

An Exception to the Rule

There is a legal exception to what I’ve written above and that is called Bona Fide Occupational Qualification (BFOQ). It is a legal mechanism that is a defense against discrimination only when age, sex, religion, or national origin is an actual qualification to perform a job. A good example would be that, in a job interview for a position as a Rabbi, it would be perfectly legal to ask if the candidate is Jewish.

Conclusion

As a job candidate you also have a responsibility not to offer any information that could be used to discriminate against you. Do not talk about your wonderful children; do not mention that you go to church or which religious text you read; do not talk about how great you feel even though you’re 60. You get the idea. You might not only be hurting your chances, but you may be putting a well-meaning HR person in an uncomfortable position.