What an Employer Can and Cannot Ask During an Interview

Asking and answering questions in a job interview can be nerve-wracking, and determining what an employer can ask and what an employer cannot ask can be hazardous ground to navigate. Some employers might have weird questions but often these are designed to keep you on your toes and evaluate how you react to unfamiliar circumstances.

On the other hand, questions about your religion, aspects of your personal life, and medical information are examples of what employers cannot ask. Regardless of how employment law sees these types of inquiries, employers still ask them and you might feel inclined to answer them if you want the job.

Whether you’re the interviewee or you’re conducting the interview, however, you have to know what questions are off-limits, at least in the broad strokes. This prevents the employee from being discriminated against, and the employer from a possible litigation.

Reasons for questions

Sometimes it’s not just about what an employer can ask, but why you feel the need to request that specific information.

Consider the basis of your questions – are they biased? If you have a set of questions but find yourself only asking some of them to women for some preconceived notion of how women (or men) think, this is not a good question and borders on illegality. The same can be said for other demographics as well.

Essentially if your interviewing practices ever come under audit, you need to be able to explain the basis of your questioning and it needs to sound reasonable. Start there as a base to create your method of interview and you should be safe.

Be clear and consistent

We just touched on it, but never ask questions from one group of people that you don’t ask of everyone. Some examples would be:

• Asking a woman if she plans to start a family

• Asking younger or older applicants additional questions because you don’t trust their commitment to the job (based on age groups specifically)

You can be concerned that your potential new hire might leave for a better job in a few years, but you need to ask that question of literally everyone, not just middle-aged and young applicants. Anyone can leave, and only asking one or two demographics is biased and discriminatory.

As far as clarity goes, this is important when the job requires a certain age, like selling alcohol or bartending. You can ask if they are 21, and ask for proof, but you cannot ask vague questions like “when did you graduate high school”. If a specific age is essential for the job, ask, and be done.

Questions in the margins

Some examples of what an employer cannot ask under any circumstances are:

• Questions regarding religious affiliation

• Anything directly linked to height, weight or genetic information

• Direct questions about arrest record or criminal history

• Questions about marital status

• Anything to do with sexual orientation

Understanding how to ask specific, allowed questions without stepping off the path into illegality can be tricky, but here are some pointers:

• Make sure your questions are broad, allowing the applicant to answer in their own words

• Ask the same questions to every single candidate

• Don’t get lost in specifics; for instance, you can ask about availability for shifts, but never ask if a person is available on the weekend, as that can be seen as fishing for religious information

• Never ask about disability during an interview, instead, clearly define the job and it’s essential functions and duties and then ask if they could perform them

This list isn’t exhaustive, but it’s always best to avoid personal questions, involve your own bias, or request specific information. When in doubt, question broadly and let the interviewee fill in the blanks.