Interviews and Questions to Ask

As always, whether or not any particular interview question is lawful or unlawful (as discussed below) will depend on whether or not you’re covered by a law that prohibits the question from being asked.

Similarly, just because a question can be asked during an interview does not mean that it should be asked!  As a general rule, all interview questions should concern the applicant’s ability to perform the duties of the job in question.  Obviously, ensuring that the employee is a good fit for your organization is also important, but should not be the focus of the interview process.  Questions regarding “fit” can be asked, but you should give careful consideration to the question you will ask regarding all subjective job qualifications.

Age

Permitted: If an applicant is over a minimum age. 

Don’t Ask: An applicant’s age, birth date, birth certificate, high school graduation date, or any other question expressing or implying a preference for a specific age group.

Race

Permitted: Unless race is a bona fide occupational qualification for the position, he should not ask any questions about the applicant’s race.

Don’t Ask: Any questions about the applicant’s race

National Origin

Permitted: You can ask an applicant whether he or she is legally authorized to work with in the United States,but you should not ask any questions solely for the purpose of determining the applicant’s national origin.

Don’t Ask: Any questions about the applicants ability to speak particular foreign languages, unless that skill is required for the position in question.  That is, you should not ask an applicant with a Hispanic surname whether or not he or she can speak Spanish.  Likewise, you should not ask any questions regarding surname origin, birthplace of applicant or parents, nationality or national origin, ancestry, or maiden name.

Gender

Permitted: Like race, you should not ask any questions about an applicant’s gender.

Don’t Ask: Any questions about an applicant’s gender.

Marital/Family Status

Permitted: Some states do not prohibit discrimination based on marital status or family status.  Even in those states, it is not wise to ask questions about marital status or family status unless it is somehow relevant to the position in question.  Of course, even in states that prohibit discrimination based on marital status or family status, you are permitted to ask whether or not the applicant is related to any one in your current workforce (although that question should only be asked if the company has a policy limiting the employment of relatives).

Don’t Ask: Number of children, family plans, ages of children, marital status, spouse’s occupation, child care arrangements, if they own a car, who they reside with, health care coverage through spouse.

Work Schedule

Permitted: If the applicant is willing to work required work schedules.  If there is anything that would prevent the applicant from meeting scheduled workdays or hours.

Don’t Ask: An applicant’s willingness to work any particular religious holiday.

Religion

Permitted: Unless religion is a bona fide occupational qualification for the position in question, you should not ask any questions regarding an applicant’s religion or religious beliefs.  You are, however, permitted to ask an applicant questions about his or her ability to perform the essential functions of the position.  Accordingly, you can ask an applicant if there is anything known to an applicant that would interfere with performing a job, working overtime or weekends (if required by the job), or complying with company policies

Don’t Ask: An applicant’s religious affiliation, religious beliefs or religious holidays observed.

Disability

Permitted: Whether the applicant can perform the essential functions of the job, with or without reasonable accommodation, and (only where the applicant has disclosed a disability or the need is obvious) whether the applicant will need an accommodation to perform a specific job duty.  Under the ADA, employers may not make disability-related inquiries or require medical examinations of any kind before a conditional offer of employment is made – not even inquiries framed around "physical conditions" that might limit performance.  Disability-related questions and medical exams are only permitted after a conditional offer has been extended, and only if required uniformly of all entering employees in the same job category.

Don’t Ask: Whether an applicant has physical disabilities, if the applicant has ever had a job-related injury, if the applicant has ever filed a worker’s compensation claim.  You may not ask about the nature or severity of disabilities, past medical problems, recent or past surgeries and dates, or physical handicaps the applicant may have or appear to have.  Pre-offer, do not ask about physical conditions at all – limit questions strictly to ability to perform the job's essential functions.

Credit Rating

Permitted: You may obtain credit information if job related and secured in accordance with procedures in Fair Credit Reporting Act

Don’t Ask: Whether an applicant has any overdue debts, ever filed for bankruptcy, had a wage garnishment, owns or rents a residence

Military Background

Permitted: Questions about the type of experience and skills acquired that are job related.

Don’t Ask: Questions about military service in any other country.

Criminal History and Salary History

Permitted: Varies significantly by state and locality. Many states and dozens of cities have "ban the box" laws that prohibit asking about criminal history on the initial application and delay any such inquiry until later in the hiring process (often after a conditional offer). Separately, a growing number of states (including California, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, and Oregon, among others) prohibit asking applicants or their current/prior employers about salary history. Check the specific requirements in every state and locality where you hire before asking about either topic.

Don’t Ask: Criminal history on an initial application where a "ban the box" law applies, or salary/wage history where a salary history ban applies.

Organizations

Permitted: Whether the applicant is an active member in any trade or professional organization.

Don’t Ask: If the applicant belongs to, participates in, the activities of any clubs, societies, lodges, or special interest groups (i.e. that may indicate the applicant’s race, religion, etc.)