An interview question is not illegal to ask if it directly relates to the job requirements and does not inquire about protected characteristics that could lead to discrimination.
Lawful inquiries focus on a candidate's ability to perform the essential functions of the job, and they must be specific and tied to the job description. For instance, questions such as "Can you lift 40 pounds?", "Do you need any special accommodations to perform the job you've applied for?", or "How many days did you miss from work (or school) in the past year?" are generally considered legal if they are relevant to the role's demands.
Understanding Legal vs. Illegal Interview Questions
The key distinction between legal and illegal questions lies in their intent and whether they could be used to discriminate against a candidate based on protected classes. Protected characteristics include race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, or genetic information.
Legal Interview Questions Examples:
- Job-Related Skills and Abilities: Questions that assess a candidate's direct capability to perform job duties.
- "Can you lift 40 pounds?" (if lifting is an essential job function)
- "Are you able to travel frequently, as required by this position?"
- Availability and Commitment: Inquiries about a candidate's work schedule or attendance history directly relevant to the role's demands.
- "How many days did you miss from work (or school) in the past year?" (This must be consistently asked of all applicants and related to the job's attendance requirements.)
- Accommodation Needs for Job Performance: Questions about necessary support for performing the job, rather than general disability status.
- "Do you need any special accommodations to perform the job you've applied for?"
These questions are permissible because they evaluate a candidate's ability to perform the job rather than their personal background or protected status.
Why Certain Questions Are Lawful
Legal interview questions are permissible because they directly relate to Bona Fide Occupational Qualifications (BFOQs) or essential job functions. They help employers determine if a candidate can meet the physical, mental, or scheduling demands of a specific role.
- Physical Requirements: For jobs requiring physical exertion, asking about the ability to lift a certain weight (e.g., "Can you lift 40 pounds?") is legal if that weight is directly relevant to tasks required for the job, such as moving equipment or supplies.
- Performance with Accommodation: Rather than asking if a candidate has a disability, asking "Do you need any special accommodations to perform the job you've applied for?" focuses on their ability to perform with or without reasonable accommodation, which is compliant with disability discrimination laws.
- Attendance and Reliability: Inquiring about past absenteeism (e.g., "How many days did you miss from work (or school) in the past year?") can be legal if it is consistently applied and directly tied to the importance of reliable attendance for the job role. This evaluates a candidate's reliability, not their health or personal life.
Navigating Interview Questions: A Comparison
To further clarify, consider the contrast between common illegal questions and their lawful alternatives:
| Topic Area | Illegal Question | Lawful Alternative |
|---|---|---|
| Age | "How old are you?" | "Are you over the age of 18?" (if a legal requirement) |
| Marital/Family Status | "Are you married?" or "Do you have children?" | "Are you able to meet the travel requirements of this position?" |
| Disability/Health | "Do you have any disabilities?" | "Can you perform the essential functions of this job, with or without reasonable accommodation?" |
| Religion | "What is your religion?" | "Are you available to work on weekends/holidays if required by the job?" |
| National Origin | "Where were you born?" or "What is your ancestry?" | "Are you legally authorized to work in the U.S.?" |
| Physical Abilities | (Asking about general health conditions) | "Can you lift 40 pounds?" (if job-related) |
| Attendance | (Asking about specific illnesses or medical leaves) | "How many days did you miss from work (or school) in the past year?" (if job-related) |
Best Practices for Interviewers
To ensure interviews remain legal and fair, employers should:
- Focus on Job Requirements: All questions should directly relate to the skills, experience, and abilities necessary to perform the job effectively.
- Standardize Questions: Ask all candidates the same set of questions for a given role to ensure consistency and fairness.
- Train Interviewers: Provide training on what questions are legal and illegal, and how to probe effectively without crossing legal boundaries.
- Consult Job Descriptions: Ensure that any physical or attendance-related questions are clearly outlined as requirements in the job description.
By adhering to these principles, employers can conduct effective interviews that identify the best candidates while complying with employment laws. For more detailed information on prohibited employment policies and practices, refer to resources from organizations like the U.S. Equal Employment Opportunity Commission (EEOC). Further guidance on legal interview questions can also be found through human resources associations like the Society for Human Resource Management (SHRM).
