In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

If you are a person with an impairment, should you volunteer information about your impairment during an interview? When I worked at Disability Rights of Texas, we advised persons with disabilities to not discuss their impairment until necessary. An employer cannot lawfully ask about an impairment until a job offer has been made. And even in that situation, the employer should simply state these are the job functions, can you perform them?

Dr. Daniel Ryan, author of the Job Search Handbook for Persons with Disabilities, agrees. He says resumes are often used to screen pout people. So, it is better to provide information about an impairment later in the application process. The problem may come if you have a large gap in your resume, due to some disability. In that case, says Dr. Ryan, you should have a filler – something that explains the gap. Dr. Ryan advises to use the resume to open the door and use the interview process to tell who you are. See Military Times report.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

Body language can tell you how your next job interview is going.  If the interviewer starts drumming her fingers, sighing, leaning back, she is irritated.  If she loses eye contact, fiddles with her fingers, then she is bored.  Watch for these clues in your next interview.  

If the interviewer leans back with her hands behind her head, she may feel condescending or superior.  If she leans forward, then she listening.  if she suddenly changes positions while listening, she may feel the need to listen to what you have to say from a different perspective.    If you observe these clues, you can re-direct your efforts during the interview.  See more at the ABA Bar Journal article.  

The experts recommend that you make eye contact as much as possible.  Do not slouch or sit on the edge of your seat.  Watch how loudly you speak and how fast you speak.