Training your talent selection and hiring team on what to ask, and what not to ask, in pre-employment interviews is an imperative for executives. Indeed, executives would be mindful and wise to prepare and review a 'checklist' prior to interview with your selection teams, to revisit what can, and cannot be asked during the interview, so that you don't unwittingly step into any legal bear trap. Asking an illegal question can greatly hurt your company, potentially injure the candidate, and can lead to unlawful bias in the interview setting.

Pre-Employment Interviews

Be especially be careful for those sidebar discussions before and after the interview, or at an off-site meal, where conversations can periodically wander into murky our outright dangerous territory. If the conversation gets off track, be mindful to redirect discussions back to lawfully explorable areas.

Here is not-so-fictional example of what I am exploring in this article.  Several years back, we had just completed the finals panel interviews for a key executive position and we all headed off-site to a local restaurant for dinner with what we thought was an outstanding and hirable candidate. During the social discussion over dinner, after some preliminaries, the selection committee members seemed to move to a position of selling the candidate on how great it was to live and work in their city. One of the selection committee members commented that he had X number of children and he loved living in the city because it was so family friendly (and this is ok so far as he was merely expressing his personal observations of his own situation), however then the selection committee member pivoted and asked the candidate.... 'how many children do you have, and do you want more children?' I immediately jumped into the conversation.... and told the candidate DO NOT ANSWER THAT QUESTION, and withdrew the question from consideration. The selection committee member said, 'hey, I was only wondering if she was thinking of having more children?' I again said, to the candidate, DO NOT ANSWER THAT QUESTION EITHER, and withdrew that question from consideration. 

Then I called a time out, and apologized sincerely to the candidate for this interview foul, and took time at that dinner to educate the selection committee members and the candidate on why we cannot ask such questions during pre-employment interviews.  The candidate was understanding, and the company followed through with their hiring plans and offered her a full-time position; so on the surface, all was remedied as the questions were withdrawn, apologies were made to the candidate, and there was ultimately no harm, and no injustice in this situation. However, this could have been a really bad situation.

Ask yourself, have you ever been present when an illegal question was asked? How do you handle it? Have you briefed your executives and employees on what they can and cannot ask?  [While not giving or providing to you any legal counsel] here is some sage advise you might find valuable as you consider your next interviews.

  1. Prepare you and your team by consulting with your HR legal advisors for counsel in pre-employment interviewing.
  2. Engage someone on your internal team, or as a 3rd party consultant, that has SHRM qualifications to guide you in the hiring processes. 
  3. From SHRM, "Despite specific information employers would like to have, they must avoid asking discriminatory questions in interviews or on application forms and resist basing an applicant's evaluation on criteria that are discriminatory in nature. Many discrimination complaints and lawsuits stem from interviews and application forms." 
  4. From SHRM, "Hiring managers should keep in mind that even "facially neutral" (i.e., those that do not appear to be discriminatory on their face but rather are discriminatory in their effect) job requirements relating to education, experience and physical characteristics may be considered unlawful when the requirements screen out a disproportionately high percentage of candidates on the basis of protected status and are not justified by any business purpose."
  5. The EEOC has ruled that it Is "illegal to ask a candidate questions about their: 
    Race, Color, or National Origin.
    Religion.
    Sex, Gender Identity, or Sexual Orientation.
    Pregnancy status.
    Disability.
    Age or Genetic Information.
    Citizenship.
    Marital Status or Number of Children."
  6. There are no questions you can ask about a candidate's marital status; none. Questions such as 'are you married,' 'are you single,' and 'do you have children' are forbidden.
  7. You may ask how long a candidate has lived at their current address? What was your previous address and how long did you live there? But you may not ask: do you own your own home or rent? Who do you live with? How are you related to the people you live with?
  8. You may ask about someone's age eligibility to work only if it is directly related to the position: e.g., bar tender, or other age specific requirement for the work to be performed. You are not to ask what year they were born, or what year they graduated from high school?
  9. You can tell them about your shift schedule and ask about the days and shifts they can work? You can also ask if there are any shifts they cannot work? However, you would be wise not to ask 'can you work weekends' as this might be deemed a proxy question to identify for religious practice, and asking about religion is forbidden in the job interview.
  10. You can ask if a candidate has any responsibilities that could make it difficult for them to travel for work? You can also ask do you have a reliable way of getting to work? However asking if they own a car, can potentially viewed as racially discriminating in some situations.
  11. You can ask a candidate if they are legally able to work in the US? Also, you can ask, in the future, should we choose to hire you, will you be able to provide proof of eligibility to work in the US? However unless specifically required for the position, you cannot ask whether they are a US Citizen. Nor what country are your parents from? Nor can you ask, 'your last name is interesting, where is it from?
  12. You can describe the job function and requirements fully and ask if they can perform all functions? However you cannot ask them if they have a disability.
  13. You can ask them what wage or salary they would be willing to work for? However, increasingly, in a number of states you cannot ask what the candidate makes per hour or salary. Read more about this issue in a blog I wrote for Quora.com; read here.
  14. There are many other questions that one might consider with reference to each of the protected classes of information, and you would be well to ponder these and discuss them with your team in advance of interviews.
  15. For further information on this topic the reader is referred to these articles:
    1. https://www.google.com/search?q=illegal+questions+not+to+ask+when+interviewing&rlz=1C5CHFA_enUS822US822&oq=illegal+questions+not+to+ask+when+interviewing&aqs=chrome..69i57j0.6284j1j7&sourceid=chrome&ie=UTF-8
    2. https://www.betterteam.com/illegal-interview-questions
    3. https://www.lawcrossing.com/employers/article/900048994/Off-Limits-Interview-Questions-What-Should-Never-be-discussed-between-a-Hiring-Manager-and-a-Job-Candidate/
    4. https://www.topresume.com/career-advice/illegal-interview-questions
    5. https://www.shrm.org/ResourcesAndTools/tools-and-samples/toolkits/Pages/interviewandemploymentapplicationquestions.aspx