Last week, we covered several interview questions to avoid because they are either expressly prohibited by law or may directly or indirectly reveal an applicant is a member of a protected group. Here are five more questions to avoid, along with some suggested alternatives.
Avoid #1: You have a beautiful name … what is the origin of it? Where is your accent from? Where were you born? Where did you grow up?
Federal and many state laws prohibit employers from discriminating against applicants and employees on the basis of national origin (based on where the individual was born or because of their ethnicity or accent). Avoid these questions since they may reveal information about an applicant's national origin.
Alternative: None. However, you are permitted to ask if the applicant is authorized to work in the United States, as long as you ask this question of all candidates.
Avoid #2: Are you pregnant? Do you have or plan to have children? Are you married? Who's responsible for your children's care? Would you need to take leave if your children's school is closed because of COVID-19?
Federal law and many state laws prohibit employers from discriminating against individuals because of pregnancy. Some states also expressly prohibit employers from discriminating against applicants because of their marital and/or family status. Asking these types of questions may also have a disproportionate impact on female applicants. Laws granting employees leave for caregiving purposes may also provide protections. Avoid interview questions about an applicant's pregnancy, intentions regarding pregnancy, caregiver responsibilities, or family and marital status.
Alternative: During the interview, explain expectations related to work hours, overtime and travel, and ask the applicant whether they can meet those requirements. Be consistent and ask these questions of all applicants (that is, not just female applicants).
Avoid #3: Do you have a disability? How many sick days did you use last year? We ask all candidates this … will you need a reasonable accommodation on the job?
The Americans with Disabilities Act (ADA) and similar state laws generally prohibit employers from asking questions during interviews that are likely to reveal the existence of a disability.
Alternative: Under limited circumstances, the ADA allows employers to engage in a dialogue regarding whether a qualified candidate would need a reasonable accommodation to perform the essential functions of the job. For more information, see Question #15 from guidance issued by Equal Employment Opportunity Commission (EEOC).
Avoid #4: Do you have military obligations that would require you to miss work? Do you have military duties on weekends?
Under the Uniform Services Employment and Reemployment Act (USERRA), employers are prohibited from discriminating against applicants and employees due to past, present or future membership in the uniformed services. Avoid questions about an applicant's military obligations.
Alternative: If applicants voluntarily disclose that they served in the military, such as on their resume, you may ask questions regarding relevant job-related skills acquired during their service.
Avoid #5: Have you ever been arrested or convicted of a crime?
Questions about arrests are generally off limits. Several state and local laws also limit the use of conviction records by prospective employers. For example, some laws expressly prohibit questions about criminal histories until after the employer makes a conditional job offer. Check applicable laws and consult legal counsel before asking about criminal history.
Alternative: Even where criminal history inquiries are permitted, they must be used in a nondiscriminatory way. Employers should evaluate how the specific criminal conduct relates to the duties of a particular position, according to the EEOC. This generally requires an individualized assessment that looks at the facts and circumstances surrounding the offense, the number of offenses for which the individual was convicted, rehabilitation efforts, and employment or character references.
Avoid questions that are expressly prohibited by law or may directly or indirectly reveal an applicant is a member of a protected group. If an applicant voluntarily offers information about their protected status, redirect the interview to elicit job-related information that can help assess whether the candidate is qualified for the job and do not use that information when making employment decisions. Train supervisors and others who conduct interviews to ask questions in accordance with the law and company policies.
Learn even more on this topic through our webinar Hiring and Onboarding: 10 Do's and Don'ts to uncover best practices for providing a great candidate experience.