Human resources (HR) professionals play a vital role in every organization. They are responsible for recruiting, hiring, training, and managing employees. However, there are certain questions that HR legally cannot ask candidates during the hiring process.
Questions About Age
It is illegal under the Age Discrimination in Employment Act (ADEA) for employers to discriminate against individuals who are age 40 or older. This means HR cannot directly ask a candidate’s age or date of birth. They also cannot ask indirectly about a candidate’s age by inquiring about high school graduation dates or asking for proof of age.
Some examples of illegal age-related questions include:
- “How old are you?”
- “When did you graduate from high school/college?”
- “What year were you born?”
- “How many years have you been working?”
The only instance when an age-related question may be appropriate is if age is a legal requirement for the job. For example, HR can confirm a candidate is over 18 if operating heavy machinery is required.
Questions About Family Status
HR cannot inquire about a candidate’s marital status, plans to have children, or other family responsibilities. This protects candidates against discrimination based on gender and family status.
Some prohibited family-related questions include:
- “Are you married?”
- “Do you have children or plan to have children?”
- “How will childcare arrangements affect your work schedule?”
- “Does your spouse work outside the home?”
- “What does your spouse do for a living?”
HR should avoid any question that directly or indirectly relates to family caregiving responsibilities or assumptions based on gender. They can only ask if candidates are available to work required schedules and travel if necessary.
Questions About Race, Color, or Nationality
Requesting information about a candidate’s race, skin color, ancestry, or national origin is prohibited under Title VII of the Civil Rights Act. HR should focus questions on job qualifications and avoid personal characteristics.
Examples of unlawful questions about race or ethnicity include:
- “What is your race?”
- “What is your skin color/complexion?”
- “What is your nationality/lineage?”
- “What language do you commonly speak?”
- “What is your native language?”
HR can only ask if a candidate is legally authorized to work in the United States. They cannot require foreign language fluency unless it is relevant to legitimate job duties.
Questions About Religion
HR cannot ask candidates any questions about their religious affiliation, beliefs, or practices. This includes both direct and indirect inquiries.
Some examples of unlawful religious questions:
- “What is your religion?”
- “Which religious holidays will you be taking off work?”
- “Do you wear any religious garments or symbols?”
- “Will you be able to work on [specific holy day]?”
HR can describe work schedules and ask if candidates can work them. But they should not probe into religious reasons for unavailability.
Questions About Disabilities
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against people with disabilities. HR cannot ask candidates if they have a disability, require medical exams, or inquire about the nature of a disability.
Some unlawful disability-related questions include:
- “Do you have any physical or mental disabilities?”
- “Have you had any recent hospitalizations or surgeries?”
- “Are you currently on any prescription medications?”
- “How many sick days did you take last year?”
- “Can you lift 50 pounds?”
HR can describe job duties and ask if candidates can perform them with or without reasonable accommodation. If a candidate voluntarily discloses a disability, HR can discuss accommodations but cannot probe further.
Questions About Genetic Information
The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting genetic information, including family medical histories. HR should not ask candidates about genetic conditions, blood relations illnesses, or related topics.
Examples of unlawful questions about genetic information:
- “Have you or anyone in your family had cancer, diabetes, etc?”
- “Do you know of any hereditary diseases in your family?”
- “Have you ever undergone genetic testing?”
- “Is sickle cell anemia present in your family?”
HR should avoid mentioning or asking for family medical information altogether during interviews.
Questions About Physical Appearance
It is illegal to discriminate against candidates based on physical characteristics that are not relevant to the job. HR cannot ask about height, weight, body type, attractiveness, grooming, or personal style choices.
Some examples of inappropriate physical appearance questions:
- “Can you submit a photo with your application?”
- “How tall are you?”
- “Do you have any noticeable piercings or tattoos?”
- “Do you have a professional appearance/image?”
- “Are you willing to wear a uniform/remove piercings?”
HR can discuss company dress code and uniform policies but should not impose any requirements based on protected characteristics like race or gender.
Questions About Legal History
HR professionals should be careful when asking about a candidate’s legal background. Overly broad questions about arrests, acquittals, or convictions could violate laws prohibiting employment discrimination.
Some overly intrusive questions about legal history:
- “Have you ever been arrested?”
- “Have you ever spent a night in jail?”
- “Were you ever engaged in civil disobedience?”
- “Have you ever been accused of a crime?”
HR can ask targeted questions about convictions substantially related to job duties. Some states also allow asking about pending charges. Any questions must be relevant and not disproportionately exclude minorities.
Questions About Credit History
HR cannot ask about a candidate’s credit scores, credit card debt, or bankruptcy history in most cases. This is only permitted when it is substantially job-related and disclosed beforehand.
Prohibited credit history questions:
- “Is your credit score above 700?”
- “How much credit card debt do you have?”
- “Have you ever declared bankruptcy?”
- “Have you ever had debts go into collection?”
HR can only run credit checks when authorized and compliant with the Fair Credit Reporting Act and state laws.
Questions About Military Discharge
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers cannot discriminate based on military service or ask about discharge details. HR can confirm basic information on a resume but should not probe further.
Prohibited questions about military discharge:
- “Were you honorably discharged?”
- “Why did you leave the military?”
- “What type of discharge did you receive?”
HR can ask if candidates received any relevant training or acquired skills that could help them perform job duties.
Questions About Union Membership
Under the National Labor Relations Act, employers cannot discriminate based on whether candidates belong to a union. HR cannot ask about current or former union membership.
Illegal union membership questions:
- “Are you in a labor union?”
- “Which union did you belong to at your last job?”
- “Have you ever gone on strike?”
- “Will you join our company’s union?”
HR can discuss company policies if there is a unionized workforce. But they cannot allow union status to influence hiring decisions.
Questions About Sexual Orientation
Although not specifically addressed in federal law, questions about sexual orientation have been found illegal under Title VII protections. HR should avoid asking about candidates’ sexuality.
Prohibited sexual orientation questions:
- “Are you straight, gay, bisexual, etc?”
- “Are you married to or dating someone of the same sex?”
- “Would your spouse be coming to company functions?”
HR can ask general questions about guests at company events but should not probe into sexual orientation.
Questions About Political Activity
The First Amendment’s freedom of speech and association clauses protect candidates from inquiries into protected political activity. HR should stay away from these topics.
Illegal political activity questions include:
- “Are you a registered Democrat or Republican?”
- “Which candidate did you vote for?”
- “List any political campaign donations.”
- “Are you active in any political groups?”
HR can discuss lobbying restrictions or policies on campaigning at work but cannot ask about affiliations or voting history.
Questions About Residency
HR cannot ask about residence, address, housing details, or living arrangements prior to hiring. This could expose possible discrimination based on socioeconomic status.
Unlawful residency questions:
- “Where do you live?”
- “Do you rent or own your home?”
- “Who do you live with?”
- “Is your home in a good neighborhood?”
HR can ask about the distance and time to commute after a candidate is hired. But housing status should not factor into the hiring decision.
Questions About Citizenship Status
While HR can verify legal authorization to work in the United States, overly broad immigration inquiries could amount to national origin discrimination. Questions should be limited and job-related.
Overly broad citizenship status questions:
- “Are you a U.S. citizen?”
- “Where were you/your parents born?”
- “What is your native language?”
- “How did you acquire work authorization?”
HR should stick to confirming eligibility to work and avoid unrelated questions. They can also discuss sponsorship later in the hiring process if needed.
Questions About Languages Spoken
Requiring English fluency could be discriminatory if the language skill is not relevant to the job. HR should be cautious with language questions.
Problematic language questions:
- “What is your native language?”
- “How fluent are you in English?”
- “Do you speak any foreign languages?”
- “What other languages do you read/speak fluently?”
HR can confirm foreign language fluency only if it is an occupational requirement. Otherwise, they should avoid language questions.
Questions About Emergency Contacts
Requesting emergency contact details during interviews could reveal protected class information that influences hiring decisions. This inquiry is better left for after hiring.
Prohibited questions:
- “Who is your emergency contact?”
- “What is their relationship to you?”
- “Do you have a spouse who could be contacted?”
HR can collect emergency contact information during onboarding paperwork, not during the interview process.
Conclusion
HR professionals must be extremely cautious when interviewing candidates to avoid any inappropriate or illegal questions. They should focus on qualifications, skills, and ability to perform job duties.
Protected characteristics like race, gender, religion, age, disability, or genetic information should never be factors in hiring someone. HR should also avoid assumptions tied to things like marital status, children, medical leave, or personal appearance.
By understanding what you cannot legally ask, HR can conduct interviews that comply with federal, state, and local employment laws. This helps build a fair recruitment and hiring process based solely on legitimate occupational qualifications.