Recruiting in 2022: Prohibited Interview Questions, Part 2

January 12th, 2021

The hiring process is often expensive and finding a good fit for a job description is critical. Every hiring manager should also prioritize compliance during the interview process. It’s important for employers to comply with state employment law, the Americans with Disabilities Act (ADA), federal law surrounding protected classes and discrimination, and the Equal Employment Opportunity Commission (EEOC). Businesses that ask illegal interview questions will increase their risk and exposure. Noncompliant interview questions will also make candidates consider dropping out of the hiring process. Even if the position is their dream job, asking them sensitive and noncompliant questions may represent a toxic work environment. Employers who ask illegal questions about topics such as national origin and sexual orientation will have challenges attracting top talent to work at the company. In part two of this article, MP’s HR compliance experts share four more topics employers should avoid with candidates during job interviews.

4 Illegal and Sensitive Interview Topics

1. Health and disability.

To maintain compliance and avoid discrimination, employers should never ask candidates about their health, bodies, or potential disabilities. Employers should focus on whether the individual is able to perform the essential functions of this job with or without reasonable accommodations. Interview questions must focus on candidates’ ability to complete each job requirement. In addition to compliance concerns, employers must be aware of the potential impact of negative candidate experiences on their employer brand. Candidates may share uncomfortable interview experiences online or with other potential employees. Asking these questions won’t just risk compliance. It will also jeopardize the employer brand’s integrity.

Employers should never ask:

What’s your height, weight, etc.?
Did you use all your sick time last year?
Do you have any major health conditions or illnesses?

Employers could ask:

How would you perform this particular task?
Are you able to perform this job with or without a reasonable accommodation?

2. Ethnicity or nationality.

Hiring managers should ask questions focused on job requirements. They should avoid asking questions or making assumptions regarding candidates’ nationality, ethnicity, or race. The hiring manager may even want to connect with the candidate based on shared ethnicity, nationality, etc. It’s imperative not to do this in order to stay professional and in compliance during the interview process. A hiring manager may engage slightly if a candidate volunteers personal information about their ethnicity or nationality. However, connecting over other topics will be more comfortable for the candidate. Hiring managers could connect with candidates over favorite books, sports, common work experiences, etc. Employers should never ask:

Are you an American citizen?
What is your first language?
How long have you lived in the US?

Employers could ask:

Are you authorized to work in the U.S.?
Are you able to understand and speak the predominant language of our client base?

3. Criminal records or debt.

Some jobs, such as financial positions or roles working with children, will require a clear criminal or financial record. However, it may be noncompliant for employers to ask about these topics directly. Many states have passed “Ban the Box” laws, which prohibit employers from inquiring about an applicant’s prior criminal history. Even in states without Ban the Box laws, or where criminal history isn’t considered a protected class, employers may choose to consider candidates who have experienced past legal challenges. While they must also avoid negligent hiring, managers may find an applicant with a criminal background is the best fit for the job. Employers should note they are able to conduct criminal background checks, but it’s a best practice to perform them after a conditional employment offer. The offer should state that employment is contingent upon background check results. Employers should never ask:

Have you been arrested?
Are you in debt?
Have you ever declared bankruptcy?
Do you have a criminal record?

Employers could ask:

There are no appropriate or risk-free questions on this topic.

4. Smoking, drinking, and drugs.

As with health, smoking, drugs, and alcohol use are topics employers should generally avoid in interviews– unless they pertain to specific job requirements. Employers have the right to create drug, alcohol, and tobacco use policies for their workplaces. They may share these with candidates to whom they make final job offers. Employers should note that some states protect usage of cigarettes or marijuana. Before drafting any policies, employers should ensure they won’t run afoul of state protections for people who smoke or use marijuana. Additionally, the ADA may protect candidates with drug or alcohol addictions. In addition to compliance, employers may also want to consider how their attitudes towards smoking, marijuana, or drinking may impact their employer brand. More and more states are passing laws that decriminalize usage of marijuana. An employer will widen their talent pool when they only make requirements relevant to the job functions. To be an employer of choice in today’s workforce, employers may need to be more open-minded about smoking, drugs, and alcohol usage.

Employers should never ask: