Asking questions that may cause discriminatory employment actions are, indeed, unfair; however, applicants are told there are illegal interview questions. Many applicants and employers know some interview questions are off-limits -- that an interviewer can be penalised for asking "illegal" questions. There are no illegal questions; there are, however, questions employers should not ask because the decision to hire may be influenced by the candidate's answers to certain questions. It's not illegal to ask a wide range of interview questions, but it is illegal to base employment decisions on answers to non-job-related questions.
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Disability and Medical-Related Questions
Well-constructed employment applications require applicants to state whether they can perform the essential functions of the job, with or without accommodation. When an applicant interviews for the position, you cannot make pre-employment inquiries about disabilities or medical-related issues. The Americans with Disabilities Act of 1990 prohibits basing employment decisions on an individual's medical history, disabilities or requirements for accommodations. The U.S. Equal Employment Opportunity Commission succinctly states: "The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability." Nevertheless, employers concerned about attendance and potential abuse of their leave policies may questions such as, "With the exception of personal or medical reasons, how many days were you absent from work at your previous place of employment?"
Criminal History and Financial-Related Questions
Excepting rules for occupations in the financial services industry and jobs that require security clearance, employers risk violating Title VII of the Civil Rights Act of 1964 when asking questions like, "Have you ever been arrested?" The EEOC prohibits discrimination based on colour, national origin, race, religion or sex. Interview questions seeking information that can be used to discriminate on any of these bases are prohibited. There may be a greater propensity to discriminate against certain segments of the population when you make criminal- or financial-related inquiries.
Family History and Genetic-Related Questions
The Genetic Information Nondiscrimination Act was enacted in 2008, and prohibits employment discrimination based on genetic data or information about an individual's family medical or health history. Questions such as, "Does anyone in your family have cancer?" or "Do you think you're prone to suffer from any hereditary conditions?" are strictly prohibited. Employers who violate GINA by making these types of inquiries probably want to predict whether the applicant would take extended leaves of absence or use sick leave often. GINA also applies to health insurers as well, which could be another reason an employer would inquire about genetic data for purposes related to group health plans.
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