Short of firing someone, conducting an interview is the task managers dread most. The process of culling through resumes is time consuming in the extreme, and even when that process is finished it doesn’t get any easier. One of the biggest challenges hiring managers face today is knowing what questions an applicant can and cannot legally be asked during an interview.
There are many interview questions that are illegal according to labor laws. Some things that you cannot use as a barrier to employment, such as gender and race, don’t really fit this discussion because they are obvious at the time of the interview. But other questions that would be considered discriminatory cannot and should not be asked.
You cannot ask an applicant about their religious affiliation (or lack thereof), their sexual orientation, or their marital status. You cannot ask the applicant if they have children; questions of this sort could be seen as an attempt to discover a person’s marital status as well. Forbidding such a question also ensures that you are not excluding a candidate because they might miss work due to a child’s illness or school function. Furthermore, it keeps people with spouses and/or children from being passed over as a way of keeping the company’s insurance premiums low.
There are other things cannot be asked. You should never ask an applicant about their personal life or lifestyle. While this could impact their performance, it cannot be used to exclude them from being hired. You cannot ask the person if they do drugs. If your organization is concerned about this, it should be covered under a drug testing policy.
You can ask about a person’s military service, including National Guard and Reserve service, but should not ask if they think they will be deployed to active duty in the future as a way of excluding them.
Interestingly, while you can ask if an applicant has prior military service, which is the same as asking about previous work experience, you cannot ask what type of discharge they received upon leaving the military. This is because there are many reasons that can cause you to be discharged under less than honorable circumstances that would be illegal as reasons for firing someone in the civilian world (a person’s sexual orientation is one of those reasons).
Even if an applicant brings up one of the forbidden subjects themselves, you would be wise to move the conversation back to more appropriate ground. And make no mistake; the fact that the applicant volunteered the information does not then make it legal for you to use it when making your hiring decision. Your policy should always be to hire the candidate whose skills and experience best fit the position you are trying to fill.
If you have concerns about what questions you cannot or should not ask, check with your Human Resources Department or the Department of Labor website. There are also many good seminars offered that can help you stay educated on the latest changes in labor laws.