SELECT PERSPECTIVES BLOG

The Most Common Interview Questions that Can Get You in Legal Trouble

Posted by  Jaclyn Menendez

We all know that interviewing can be a scary process. You’re wearing a tie that is too tight, you’re trying to keep all your witty anecdotes in order, and you’re terrified that you’ll slip up and say something that could cost you the job. But believe it or not, the interview process is equally nerve-wracking for your interviewer. They want to give a good impression of the company, but still get all the information they need to make an informed decision. Most importantly, just like you, they are concerned that they’ll say the wrong thing.

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In the interviewer’s case, though, saying the wrong thing could potentially cost the organization a lawsuit. That’s because there are certain questions or statements that an interviewer cannot legally ask. Questions that require information about a protected class are prohibited, and employers cannot use this information when making their hiring decisions. A protected class refers to a certain group who share a common feature and are legally protected against discrimination based on that feature. Federally protected classes include race, color, religion, national origin, age, sex, pregnancy, citizenship, family status, disability status, veteran status, and genetic information. (Additionally, make sure to familiarize yourself with any state-specific protected classes, as these can vary.)

It’s important to remember that no actual discrimination has to occur in order for these questions to cause legal trouble. Even if the applicant did not qualify for the job based on relevant reasons, you may have to prove that their protected class status did not influence your decision. This is a costly headache and legal battle that is best to avoid.  

Now that you’re armed with this background knowledge, let’s see if you can spot why these common interview questions are not permissible to ask—and how to make them legally appropriate.

  • "This job requires frequent overtime and a Sunday shift once a month. Do you have any church or family obligations that would keep you from these duties?”
Why it’s bad: It asks about the protected groups of religion and family status.
What to say instead: “This job requires a Sunday shift once a month. Are you able to fulfill this requirement?”
  • “In the past, we’ve seen a lot of older workers quit because the job requires a lot of walking. Do you anticipate this being a problem for you?”
Why it’s bad: It refers to the protected group of age.
What to say instead: “This job requires a lot of walking. Are you able to fulfill this requirement?”
  • “We don’t get a lot of female applicants. Tell me, what attracted you to this position?”
Why it’s bad: It refers to the protected group of sex.
What to say instead: “Why do you think you’d be a good fit for this position?”
  • “I noticed your last name is similar to mine! Are you from [insert country], too?”
Why it’s bad: It asks about the protected group of national origin.
What to say instead: It’s best to avoid personal questions like this altogether. You won’t be getting any job-relevant information from this type of side conversation.
 

This is just a small sample of the questions that we’ve helped steer organizations away from asking. In general, you’ll notice that most of these are not intentionally discriminatory. In fact, these questions typically occur when the interviewer is trying to make small talk, or when they get nervous and start rambling. However, no matter how innocent these questions were intended to be, they could still be used against your organization in a lawsuit regarding hiring discrimination. This is all the more reason to use a structured interview process to ensure you are conducting legally defensible interviews.

Interviewer Tips

Tags:   employment law, legally defensible, interview

Jaclyn Menendez

Jaclyn is a Consultant based out of Fort Collins, Colorado. Her areas of expertise include testing, assessments, and project management. Jaclyn has contributed to the development, validation, and implementation of assessments with various clients. She has managed, analyzed, and presented data analyses for content and criterion validation studies.

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