Questions an Employer Should Never Ask

Has an employer or a job interviewer ever asked you a question that made you feel uncomfortable? Maybe you wondered, “Is it even legal for them to ask that? Do I have to answer that question?”

During the hiring process, it is the hiring manager’s job to ask questions. They need to find out if you have the background, skills, and even personality traits that would make you a good fit for the job. To do that, they ask questions – first on the job application, and then at the interview.

There are lots of questions that an employer can ask, should ask, and probably will ask. Think, for example, of all the information contained in your resume. You list your skills. You cite where you went to school, what you studied, and where you’ve worked. You may even list licenses, languages you speak, and how you spend your free time (hobbies and interests).

So, if it goes on the resume, it is safely within the realm of what the employer should know.

But, there are lines of questioning that employers should never cross.

Where do we draw the line when it comes to personal questions? What questions are illegal for employers to ask? And what should you do if someone actually asks you these questions? Keep reading to find out.

Questions an Employer Cannot Ask

There are a number of questions that an employer cannot ask, or at least they should not ask. These fall into two broad categories: illegal questions in the interview, and inappropriate interview questions. Illegal questions are those that should never, ever be asked because of anti-discrimination laws. There are also notable exceptions – we’ll refer to these as inappropriate questions. These may be illegal if they result in discrimination, but allowable under certain circumstances. They are “gray areas” that employers must be very careful when addressing.

Below, we’ll group these questions into broad categories such as age, disability, gender, race, citizenship, family status, religion, finances, and arrests. Why is there specific concern about these topics? Stated bluntly, age, race, gender, disability, and ethnicity are among the most common reasons for discrimination. An employer might choose not to hire someone because they are too young, too old, male, female, speak a different language, come from a different country, or are of a different race or sexual orientation.

Even when the employer doesn’t intend to treat people unfairly, they may be affected by unconscious bias – favoring certain people over others because of making quick judgments based on past experience. When the above pieces of information are omitted, it can reduce the occurrence of this implicit bias.

Other questions, while not strictly prohibited, could be used to prove that an employer had discrimination as the intent. For example, the EEOC cites “inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered.” Employers should avoid these types of questions.

As already mentioned, there are a few exceptions to these illegal interview questions rules. Sometimes, government programs related to the census or affirmative action require that employers ask about race, age, disability, citizenship, or other personal details. Affirmative action seeks to use this information to prevent discrimination against minority groups. Typically, these questions appear on surveys at the end of a job application. They are multiple-choice and offer a “prefer not to say” option. They should NOT be asked during the job interview nor used to determine whether a person will get the job.

And, as we will see, there are bona fide occupational qualifications – clear exceptions to the rules. These involve questions that would normally be taboo but that are valid requirements of doing the job well or doing it safely.

As a job applicant, you should also be aware that you are not volunteering information that could cause discrimination. For example, you shouldn’t include things like your age, gender, marital status, family situation, birthdate, political affiliation, religion, or a photo on your resume.

Illegal Job Interview Questions and Inappropriate Job Interview Questions

The United States Equal Employment Opportunity Commission (EEOC) “is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.”

The EEOC investigates charges of discrimination in the workplace and files lawsuits that protect the rights of those discriminated against. They also work to prevent discrimination before it happens – which is why, in part, discriminatory questions have been banned.

Generally, the following questions (and similar variations) should not be asked to avoid breaking anti-discrimination laws. We will consider each category in turn.

Age Discrimination Questions

Employers should not ask:

How old are you?
When were you born?
What year did you graduate high school?
When did you graduate?
What is your birthdate?
When did you enter the workforce?

Age discrimination is common, especially among the age 40+ demographic. Some may have the biased opinion that these workers are too weak, too slow, or not adept at using technology.

One notable exception to asking about age or date of birth is jobs that have a minimum age requirement. For example, you must be of legal drinking age to work in a bar or even ring up alcohol products at a grocery store. Many jobs, including high-risk construction jobs, require that workers be at least 18 years of age. In some places, minors must obtain permission from their parents in order to work.

On the opposite end of the spectrum, airline pilots have a mandatory retirement age for safety reasons. In any of these and similar cases, questions about age or date of birth would not be considered discriminatory.

Country of Origin and Citizenship Questions

Employers should not ask:

What is your country of origin?
Are you a U.S. citizen?
Are you a citizen of another country?
Where were you born?
Where are you from?
What is your background?
Are your parents from the U.S.?
How did you learn [language you speak]?
Can you send us your birth certificate?

Avoiding these questions reduces discrimination based on ethicity.

Some jobs may require employees to read, write, and speak fluently in English. So, questions about English fluency are permitted. Additionally, some jobs, such as translators or interpreters, may need to be fluent in a specific language in order to do their job. Questions about that language would be permissible as well.

At times, employers may need to comply with laws concerning citizenship and work visas. Questions like “Are you legally allowed to work in the U.S?” or “If we were to hire you, can you show proof of citizenship?” may be allowed.

Questions About Disability

Employers should not ask:

Do you have a disability?
Are you disabled?
Do you have a medical condition that would prevent you from doing this job?
Have you suffered a workplace injury?
Have you ever filed a worker’s compensation claim?
How did you become disabled?
How did you lose your leg/arm/finger/etc.?

When a person has a mental or physical disability, employers may have legitimate concerns as to whether the individual can complete the required tasks or do so safely. Instead of the illegal questions listed above, employers can ask, “Can you do this job?” or “Can you perform all the duties listed in the job description?” They may also ask, “How will you perform this duty?”

In this way, they ensure the safety of all involved and the candidate’s ability to fulfill the role without crossing a line.

What if you are asked to undergo a medical exam, such as a drug test or a physical? Required medical examinations are permitted so long as all applicants are required to pass the exam in order to obtain the job. They cannot be targeted only to those who appear to have disabilities or other health probelms.

Gender and Sexual Orientation Questions

Employers should not ask:

What is your gender, sex, or sexual orientation?
Male/female? M/F?
How do you identify?
Have you had transition treatments or surgery?
Are you gay?

Under very specific circumstances, employers can ask your gender if it is a proven job requirement. An example of this might include teaching at a girls-only religious private school or auditioning for a stage, modeling, or film role.

Questions regarding an emergency contact should not be asked until after a person is hired, as it can hint at sexual orientation.

Family Status Questions

An employer should not ask:

Are you married or divorced?
Do you have any children?
Are you pregnant or do you plan to become pregnant?
Are you single?
What is your marital status?
Do you file your taxes jointly?
Who do you live with?
What relation are you to the people you live with?

Even if an applicant is visibly pregnant, the employer should not ask family status questions. He or she may ask, “Can you perform the duties listed in the job description?”

Questions About Race and Ethnicity

Employers should not ask:

What is your race, color, or ethnicity?
What is your ethnic background?
What nationality are you?

As discussed above, affirmative action programs may ask these questions, but they should not be a part of the job interview.

Questions About Religion

Employers should not ask:

What religion are you?
Are you religious?
Who is your pastor/preacher/priest?
What is your denomination?
Do you belong to a church?
Can you work weekends?
What are your religious beliefs?
Do you believe in…?

Employers cannot discriminate against member of religious groups, even if it means making special allowances for their religious beliefs (allowing an exception to the dress code to permit religiously required attire, allowing them days off for holy days, meetings, or events, etc.). An exception to this rule is churches. They may chose to hire only adherents of their faith while rejecting applicants from other religions.

Interestingly, some airlines have also faced this issue. They may hire pilots and staff of a specific religion to the exclusion of others when they use the airspace of countries that ban members of other religions on the punishment of death.

Financial Questions

Since questions concerning the financial status have historically been used to discriminate against minorities, employers should not ask:

Do you own a car?
Do you own or rent your home?
Are you in debt?
Do you have a bank account?
Have you ever declared bankruptcy?
Have your wages ever been garnished?

In some cases, owning or having access to a car is part of the job (for example, a delivery driver who must provide his own vehicle). In this case, it would be okay to ask if the applicant owns a car and has appropriate insurance. Or, they might ask, “Can you travel for work?” or “Do you have reliable transportation for work?”

Employers may also ask about employment status, such as “What is your current salary? How long have you been unemployed?” or “Why did you leave your last job?”

Arrests and Convictions

In some states, it is illegal to ask:

Have you ever been arrested?
Have you ever been in prison?

In other states, this is a legal question. Some jobs make this question pertinent even where it would otherwise be prohibited – for example, if you are applying to a law enforcement agency or if you were arrested for embezzlement at your last job.

Some jobs such as security guards are considered “sensitive” and may allow more questions along these lines.

If They Do Ask – Here’s What to Do

Job interviews can be nerve-wracking as a matter of course. Unfortunate choices in questions can make it even moreso. If your employer asks a question that you know is illegal or that makes you uncomfortable, what should you do?

One career resource gives this advice: “Change the subject, then look for a different employer.”

You are never obligated to answer questions just because a prospective employer asks them. You could even tactfully reply, “I do not feel comfortable answering that question.” The best case scenario is that the hiring manager realizes he has made a faux pas, and you can both move on.

In the worst case scenario, you simply won’t get the job, but consider this: if the employer is asking edgy questions during the interview, what other questionable practices might you encounter while working for them? This may be a red flag for you to take your leave.

If you feel that an employer has violated your rights by asking illegal or inappropriate questions – either at the job interview or at some later time – you can report them to the EEOC. Write down or screenshot the exact wording of the question.

Remember that certain questions are allowed on job applications because they are related to affirmative action efforts. Even then, if you don’t feel comfortable sharing a certain piece of information, you don’t have to. According to one law industry resource, “Job seekers are not required to answer EEO questions regarding job applications and may refuse to respond if they do not want to take the survey. The process is entirely voluntary and will have absolutely no reflection on your employment, should you refuse.”

You may also consider the fact that most illegal interview questions are asked in innocence – perhaps the hiring manager misspoke or simply did not know that a certain question is illegal.

In that case, you can decide whether or not you want to answer. If you feel that the question was innocent, with no intent at discrimination or other inappropriate behavior, and if you feel comfortable sharing a particular piece of information, you may choose to do so. Even if you decide to answer, you can decide later whether the employer intentionally crossed a line. Or, you could dodge the question by changing the subject or answering the question with a question.

Some sources recommend keeping a copy of any potentially discriminatory interview questions. If you get the job but are fired later, you may be able to file a legal claim.

Key Takeaways

Questions that may lead to discrimination – such as those involving race, ethnicity, gender, or religion – are considered illegal at a job interview.
Other questions, such as health-related questions, may be appropriate in some circumstances but not in others.
Affirmative action surveys on race, age, gender, citizenship, and disability seek to prevent discrimination.
If illegal or inappropriate questions are asked, this may be a red flag to seek employment elsewhere.
Often, however, these questions are asked in innocence or ignorance.
If you feel your rights have been violated, you can report the company to the appropriate government agency.
Think ahead and prepare answers for the most common interview questions.

Questions an Employer Should Never Ask

Questions an Employer Cannot Ask