Navigating the Hiring Process: Understanding What You Shouldn’t Ask Candidates

As an employer, the hiring process is a critical stage in building a diverse, inclusive, and legally compliant workforce. However, it’s essential to be mindful of the questions you ask during interviews or on job applications to avoid potential discrimination claims and ensure a fair and equitable process for all candidates. In this article, we’ll explore what you shouldn’t ask when hiring and provide guidance on creating a respectful and lawful recruitment environment.

The Legal Landscape: Understanding Prohibited Questions

Federal laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), prohibit employers from discriminating against job applicants based on certain protected characteristics. These include race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, and genetic information.

Asking questions that directly or indirectly solicit information about an applicant’s protected characteristics can be considered evidence of discriminatory intent and may expose your organization to legal liability. To avoid potential issues, it’s crucial to steer clear of inquiries related to these protected categories during the hiring process.

Prohibited Questions: What Not to Ask

Here are some examples of questions you should avoid asking during job interviews or on employment applications:

Race, Religion, or Ethnicity

• “Are you biracial?”
• “Which church do you attend?”
• “What language(s) do you speak at home?”

Age

• “How old are you?”
• “When did you graduate from high school/college?”
• “What’s your birth date?”

Unless you’re verifying if the applicant meets age-related legal requirements for the job, such as minimum age restrictions for certain positions, you should avoid questions related to age.

Pregnancy or Family Planning

• “Are you pregnant?”
• “Do you plan to have children within the next year?”
• “How many kids do you have?”

Questions about pregnancy, childbirth, or family planning should be avoided, as they may be perceived as discriminatory based on sex or familial status.

Disability or Medical Conditions

• “Do you have any disabilities or medical conditions?”
• “Have you ever filed for workers’ compensation?”
• “What medications are you currently taking?”

Before making a job offer, employers should refrain from asking about disabilities or medical conditions. However, after extending a conditional job offer, you may inquire about an applicant’s ability to perform the essential functions of the job, with or without reasonable accommodation.

Citizenship or National Origin

• “Where were you born?”
• “What is your citizenship status?”
• “Is English your first language?”

While you can ask if an applicant is legally authorized to work in the United States, questions about citizenship or national origin should be avoided.

Marital or Family Status

• “What’s your marital status?”
• “Do you have children?”
• “What are your childcare arrangements?”

Questions about marital or family status should be avoided, as they may be perceived as discriminatory based on sex or familial status.

Best Practices for a Fair and Inclusive Hiring Process

To ensure a fair and inclusive hiring process, consider the following best practices:

• Focus your questions on job-related qualifications, skills, and experience.
• Develop a consistent set of interview questions for all candidates applying for the same position.
• Train your hiring managers and interviewers on appropriate and lawful questioning techniques.
• Review job applications and interview questions to ensure they do not solicit information about protected characteristics.
• Maintain clear and consistent documentation of the hiring process, including the questions asked and the rationale for selection decisions.
• Consult legal counsel if you have concerns about specific questions or scenarios.

By following these guidelines and avoiding prohibited questions, you can create a more inclusive and legally compliant hiring process that attracts and retains top talent while minimizing the risk of discrimination claims.

Remember, the goal is to evaluate candidates based on their qualifications, skills, and ability to perform the job’s essential functions, not on personal characteristics or attributes unrelated to the job requirements.