Keeping Your Hiring Practices Legal

If you think common sense is a good enough rule of thumb for keeping hiring legal, then think again! Some of the legal issues are probably not as straightforward as you may think. This is another reason why all hiring managers need to have a basic understanding of the legalities of hiring. This applies not just to those making a final hiring decision but also to every single person interviewing a job candidate.

Although I will address here the legalities of hiring in general in the United States, remember that every hiring situation has its own unique legal concerns. Furthermore, employment law changes quickly with new court decisions. When in doubt, don’t be penny wise and pound foolish—consult with an expert employment attorney before you get into trouble.

In the United States, federal law prohibits employers from discriminating against job candidates on the basis of race, color, national origin, religion, sex, physical handicap, sexual orientation, or age.

As a rule of thumb, job interview questions should focus specifically on the applicant’s ability to successfully perform the duties inherent to the position being applied for.

Court interpretations have more narrowly defined what constitutes discriminatory hiring practices.

Job Interview Questions You Should Never Ask

Now I am going to give some examples of some of the most blatant illegal questions. Other questions of the same type may also have been deemed illegal, but because of the broad interpretations of the courts, it would be impossible to list all questions that might be considered illegal.

Are you married?

Many questions that relate to the sex of the applicant are illegal, including any question about marital status.

Do you have children?

It is illegal to ask an applicant any questions about children, primarily because such questions can lead to discrimination against women.

How old are you?

It is illegal to ask an applicant his or her age. This law is designed to protect applicants over the age of 40. You may ask the applicant whether he or she is over the age of 18—if he or she is not, you may need to know the applicant’s age to ascertain the applicability of federal, state, and local child labor laws.

Did you graduate from high school or college?

An educational degree should not be a job requirement and should not be asked about in an interview unless the employer can demonstrate that successful performance on this job requires a specific level of education. Otherwise, this requirement and line of questioning can be construed as discriminatory because some minorities have less educational background than non-minorities.

How much do you weigh?

All questions about physical appearance are illegal because they tend to discriminate against women and some minorities. 

What country are you from?

This question is clearly illegal because it discriminates on the basis of national origin.

Are you a U.S. citizen?

This question is illegal because it may be used to discriminate against people who have legally immigrated to the United States and/or have the right to work here, but have not become citizens. 

What is your native language?

This question discriminates on the basis of national origin. 

Are you handicapped?

You cannot ask about an individual’s possible handicaps. Furthermore, employers are generally required to make special accommodations for physically challenged applicants.

Have you ever been arrested?

You should not ask an applicant whether he or she has been arrested. You are generally well advised not even to ask about felony convictions, unless such a conviction would be unusually relevant to the position being sought. These questions can be discriminatory, because some minority groups have, on average, higher records of arrest and convictions than non-minorities.

However, the issue of asking about felony convictions is particularly difficult. As an employer, you may have liability if you hire people who pose a safety risk. Furthermore, in the U.S., the legalities of inquiring about convictions may vary from state to state, and may change from time to time. One thing you can be sure of, whoever is writing these laws has no interest in making the situation easy and simple for people running a small business. The ideal solution is to ask an employment attorney in your area what the best approach is. In any event, I would advise against simply asking an applicant whether he or she has ever been arrested.

Takeaways You Can Use

  • Job interview questions should focus specifically on the applicant’s ability to successfully perform the duties inherent to the position.
  • Anyone at all interviewing a candidate should understand the basic legalities of hiring.
  • Beware of some of the most blatant illegal questions.

About Bob Adams

Bob Adams is a Harvard MBA serial entrepreneur. He has started over a dozen businesses including one that he launched with $1500 and sold for $40 million. He has written 17 books and created 52 online courses for entrepreneurs. Bob also founded BusinessTown, the go-to learning platform for starting and running a business.