Recruiting in 2022: Prohibited Interview Questions, Part 1

The Talent War is on, and many employers will be hiring and recruiting in 2022. Innovative recruiting and hiring strategies will be critical to win in this hyper-competitive market for job seekers. However, it’s also key to any talent management strategy that employers prioritize HR compliance. One of the best practices for hiring top talent is offering a company culture that is equitable, inclusive, and complies with employment law (on both a state and federal level). This starts with the interviewing and hiring process. MP’s HR services experts share a list of interview questions that could create compliance issues and increase risk and exposure.

5 Illegal and Sensitive Interview Topics

1. Religion.

Hiring managers and human resources employees should always avoid questions about religious affiliation, as it may create a risk of discrimination or perceived discrimination. Under federal law, questions about an applicant’s religious affiliation are generally non-job-related and problematic. Employers should never ask about religious affiliation to see if an employee is a “cultural fit.” (To attract and retain employees, workplaces should embrace diversity in all forms.) If employers want information about candidates’ schedules and availability for job description requirements, they should ask direct questions about them. Employers should never ask:

• What is your religion?
• What religious holidays do you celebrate?
• Will being [insert religion] impede your ability to perform in this role?

Employers could ask questions such as:

• Are you able to work the required schedule for the job openings?
• Will you be able to work X dates?
• Are you available during nights and weekends?
• What days are you available to work?

2. Pregnancy and family planning.

These topics could create concerns about discrimination. The Pregnancy Discrimination Act defines pregnancy discrimination as “treating an employee or candidate unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” Hiring managers must also note the topics of pregnancy and family planning are sensitive and may make a candidate uncomfortable. Employers should want to ensure any employees, especially future ones, feel relaxed and comfortable in their workplace. Employers should also be concerned about what candidates may write about their interview experience online. Hiring managers must avoid these topics with all genders.

Employers may be concerned with how long an employee will stay, take paid or unpaid family leave, or impact succession planning. However, candidates and employees never owe their workplaces information about their family obligations or family planning. Pressuring them to share this information will result in toxic work culture, as well as increased risk and exposure. As they interview candidates for job openings, employers should never ask these questions:

• Do you have children?
• How many children do you have?
• Do you plan to have or adopt children?
• If you have or adopt children, will you continue to work?
• Will your childcare obligations keep you from traveling for work?
• Will your childcare obligations keep you from working overtime, weekends, nights, etc.?
• Are you pregnant?
• What are your plans if you get pregnant?
• What are your childcare arrangements?

Employers could ask candidates questions such as:

• What are your career goals, especially long-term?
• Do you have availability to work overtime, nights, weekends, etc.?
• Will you be able to travel for work?
• Are you able to perform the essential functions of this job with or without a reasonable accommodation?

3. Marital status.

As with pregnancy, children, and family planning, employers should avoid this topic, regardless of the candidate’s gender. In many states, marital status has become a protected class. Even in the states where it isn’t a protected class, employers will reduce concerns about discrimination (or perceived discrimination) by never asking candidates problematic questions. Employers should never ask questions such as:

• What is your maiden name or married name?
• Which relative would we notify in case of an emergency? (Note that this is acceptable on new hire paperwork.)
• Are you married?
• Are you engaged? Do you have wedding plans?

Employers could ask questions such as:

• Did you work previous jobs under a different name?

4. Gender.

Hiring managers and employers should never assume a candidate’s gender (ask for pronouns, if necessary). They should also never assume candidates’ abilities based on their gender. Employers must not discriminate by exclusively hiring or interviewing a specific gender for their open positions. Employers should never ask:

• We usually have a man/woman in this role. How will you perform it?
• How do you feel about working with or supervising [insert gender here]?
• How do you approach interoffice dating? Have you ever dated a coworker?

Employers could ask questions such as:

• What could you bring to this role/team/company?
• Describe your previous experience working within a team or managing a team.

5. Salary.

In many states, hiring managers and recruiters are legally prohibited from asking about a candidate’s salary history. Laws have been passed surrounding wage history to address the gender wage gap and promote wage equality. Compensation should be based on the value of the role in the organization, not the wages a candidate has previously been compensated. Depending on the state, employers should never ask:

• What do you make in your current role?
• What did you make in your previous role?
• What is your commission structure in your current role? In your previous role?

Employers could ask questions such as:

• What are your salary expectations in your next role?
• The salary range for this role is $X. Does this align with your goals?