Be careful what you say when interviewing potential employees: Various federal and state laws protect job applicants from discrimination related to their nationality, family status, disability, sex, age, or religion. Phrasing a question incorrectly — even if you’re simply making small talk — could put you at risk of a lawsuit.
To steer clear of litigation, here are a few things not to ask during a job interview:
“How old are you?” The federal Age Discrimination in Employment Act and a number of state laws bar employers from discriminating against workers older than 40. “If the candidate says, ‘I’m 45,’ and doesn’t get the job, but he’s the most qualified candidate and able to prove that, the employer could be liable for an age discrimination claim,” says Leonard Emma, an employment attorney at the Law Offices of Randall Crane in Oakland, Calif.
“What’s your nationality?” Ethnicity is a protected category under Title VII of the Civil Rights Act, so don’t ask an applicant about her accent. If you want to make sure your candidate is fluent in English, Emma notes, “You can ask whether the applicant speaks English with ease, or you can ask whether she’s fluent in other languages if it’s relevant to the job.”
“Are you pregnant?” Under Title VII, it’s illegal to ask a woman whether she’s married, pregnant, planning to have children, or already has children. (The same goes for men, though pregnancy’s pretty unlikely.) If you’re concerned about whether family obligations may prevent an applicant from putting in extra time at the office, Emma suggests asking questions like, “Are you able and willing to work overtime as necessary?” and “Would you be willing to relocate or travel as needed for the job?”
“Do you have a disability?” Under the Americans with Disabilities Act, employers may not rule out potential applicants due to a disability or illness. It is reasonable to make sure a candidate is physically capable of performing the job’s functions, but it’s important to phrase your questions carefully. “Ask questions related to the job’s physical requirements rather than whether the candidate has a disability,” Emma says. For example: “Are you able to lift a 50-pound parcel?”
“What is your religion?” Title VII includes religion as a protected class, so avoid asking your applicants whether they go to church. If you’re simply wondering whether religious duties might affect their availability, ask whether there are any particular days or the week or dates that they are unable to work, Emma says.