What HR Needs to Know About Asking Illegal Interview Questions

Navigating the complexities of hiring can be challenging, especially when it comes to understanding which interview questions are legal and which are not. Did you know that asking a simple question like when a candidate graduated high school could expose your organization to legal risks? In the U.S., various regulations ensure equal employment opportunities, and it’s crucial for HR professionals to be well-versed in these laws. This knowledge not only protects your organization but also fosters a fair hiring process.

While you may not conduct the majority of interviews, as an HR professional, you play a vital role in ensuring compliance. Sharing insights about illegal interview questions with hiring managers is essential for aligning your organization with federal regulations. Here’s what you need to know:

Key Regulations Governing Interview Questions

The Civil Rights Act of 1964

The Civil Rights Act is one of the first significant anti-discrimination laws in the U.S. It established the Equal Employment Opportunity Commission (EEOC) and prohibits discrimination based on characteristics such as gender, religion, national origin, ethnicity, and race.

Tip for HR: Train hiring managers to focus on a candidate's qualifications and abilities, avoiding questions related to personal characteristics that do not pertain to job performance.

The Age Discrimination Employment Act of 1967

This Act prohibits employment discrimination against individuals 40 years of age or older. Asking age-related questions, such as “What year did you graduate?” can imply discriminatory intent.

Tip for HR: Instead, focus on candidates' experience and skills relevant to the job. Questions about how long they’ve been working in a particular field can provide the necessary insights without revealing their age.

Th Pregnancy Discrimination Act of 1978

Under this Act, it is illegal to discriminate against candidates based on pregnancy, childbirth, or related medical conditions. While you cannot ask if a candidate plans to have children, you can inquire whether they can meet job requirements like attendance or travel.

Important Note: Ensure these questions are posed to ALL candidates to avoid potential discrimination claims.

The Immigration Reform and Control Act of 1986

This Act prohibits asking about a candidate’s nationality or ancestry. Instead, it’s acceptable to ask about their legal eligibility to work in the U.S. You can request proof of citizenship or visa status.

Tip for HR: Always frame questions to focus on legal work status rather than personal background.

The Americans with Disabilities Act of 1990

The ADA protects individuals with disabilities from discrimination. You cannot ask candidates about their physical or mental disabilities, medications, or history of workers' compensation claims. However, you can ask if they can perform essential job functions.

Tip for HR: Emphasize job-related qualifications and the ability to perform required tasks, rather than personal health history.

Salary History Bans

In recent years, 18 states and 17 localities have implemented salary history bans to combat pay discrimination. These laws prohibit employers from inquiring about a candidate’s previous salaries.

Tip for HR: Focus on the candidate's expected salary range and the compensation offered for the role instead of past earnings.

State-Specific Laws

Many states have their own regulations that build upon federal laws, including additional protections against discrimination based on sexual orientation, gender identity, and other factors. Be aware of local laws that may impose stricter requirements.

Tip for HR: Stay informed about state and local regulations to ensure that your hiring practices are fully compliant with all applicable laws.

Additional Considerations

• Consistent Questioning: Ensure all candidates are asked the same core questions to maintain fairness and compliance.
• Documentation: Keep records of interview questions and candidate responses. This can be invaluable if questions about hiring practices arise. Using BerniePortal's Recruiting Feature, you can keep all this information in one place, accessible to all hiring managers.
• Ongoing Training: Regularly train hiring managers on legal interview practices to mitigate risks associated with illegal questioning.

This blog serves as a guide for HR professionals to help ensure that their hiring processes remain fair and compliant with the law. While this information is intended for educational purposes, it does not constitute legal advice. For specific legal concerns, consulting with a qualified attorney is recommended.

Additional Resources

You can stay informed, educated, and up to date with important HR topics using BerniePortal’s comprehensive resources:

BernieU—free online HR courses, approved for SHRM and HRCI recertification credit
BerniePortal Blog—a one-stop shop for HR industry news
HR Glossary—featuring the most common HR terms, acronyms, and compliance
Resource Library—essential guides covering a comprehensive list of HR topics
HR Party of One—our popular YouTube series and podcast, covering emerging HR trends and enduring HR topics