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What's discriminatory?

Discriminatory questions attempt to unfairly categorize candidates based on specific characteristics. Namely, Federal laws, as enforced by the U.S. Equal Employment Opportunity Commission (EEOC), prevent employers from hiring based on a candidate's:

  • race,
  • color,
  • sex (or whether or not the candidate is pregnant),
  • age,
  • national origin,
  • disability, or
  • religious affiliation.

Many states also prohibit discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation.

What NOT to ask

Opening up a discussion about these categories could provide you with information that could be used to disqualify a candidate from being hired — and that's discrimination. To protect yourself as an employer, it's better if you don't collect this information in the first place. Translation: it's best to avoid certain interview questions. Still, avoiding discriminatory questions isn't always straightforward.

For example, which of these interview questions could help you collect information that could be used to discriminate?

a) What are your long-term goals?
b) How long did you work at your last position?
c) Where are you from?
d) Are you available to travel for work?
e) Do you have a high school diploma?

The correct answer is C. Surprisingly, it's a typical get-to-know-you question asked at many a first date, networking event, or other social situation. But in the job interview context, it's a no-go because it may lead to information about a candidate's national origin, which is a protected category.

Other questions to avoid include:

  • When did you graduate from college? (age)
  • How many kids do you have? (parent status)
  • Are you pregnant or planning to become pregnant? (sex/pregnancy)
  • Are you a citizen? (national origin)
  • Which holidays do you need off? (religion)

These are just a few examples, and there are many more possibilities. Because it's hard to remember all of the question that could trip you up, here are some tips for keeping your interview questions focused on what you really need to know, and avoiding possible legal trouble.

Focus on the job responsibilities

The requirements of the job define what you can and cannot ask in an interview. Questions that may be perfectly acceptable in one context may be considered discriminatory in another situation. For example, if a job requires certain physical abilities, such as being able to lift a 50 pound box, asking about a candidate's physical limitations may be permissible. But if the job does not require any special physical skill, asking about the candidate's physical condition may be discriminatory.

Prior to the interview, determine all of the skills and abilities the candidate needs and narrowly tailor the questions to address those needs.

Take care with tests

Some employers require candidates to take tests on certain skills. For example, a data entry position may require a basic understanding of computers. You may be able to require candidates to complete tasks that would test candidates' computer skills. For other jobs that do not require computer literacy, such as a truck driver, requiring such a test may be considered discriminatory.

If you choose to administer a test as part of your hiring process, make sure that the skills you are testing are absolutely necessary for the position you are seeking to fill. Be prepared to provide documentation explaining how the skills relate to the job.

Review your hiring process periodically

Questions and tasks that may appear non-discriminatory in theory may be in practice. The EEOC requires that you review your hiring practices to ensure your pool of candidates is as diverse as possible. If it appears that your practices exclude candidates with one of the characteristics listed above, you need to alter your hiring process.

Before you start the hiring process, it's a good idea to consult with an attorney to make sure you don't violate employment laws. Visit the Rocket Lawyer Labor and Employment Center for more help.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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