Before asking any interview question, think about the real reason behind the inquiry. The need to know the answer to a permissible subject -- such as the applicant's availability to work the required schedule or perform the essential functions of the job -- may lead employers to ask illegal questions about religion, disability or childcare in a misguided attempt to elicit information. Federal regulations preclude an employer from making a hiring decision based on factors such as race, age, religion or marital status or from stereotyping based upon such factors. Employers must make sure interview questions are sharply focused on essential, permissible information and do not relate to illegal subjects or assumptions.
Employers may not ask questions about an applicant's age, race, or national origin. For example, an employer may not ask where an applicant was born, how he learned to speak a particular language, what culture he identifies with, how old he is or when he graduated from high school. To identify relevant information with questions that are legally permissible, an employer may ask an applicant if he is 18 or older and legally authorized to work in the United States.
Marital Status and Children
Employers should avoid eliciting information that may not legally be considered as part of the hiring decision. An applicant should not be asked if she has children or plan to start a family, how her spouse feels about the job, whether she is pregnant or about the arrangements she has made for childcare. Instead, employers can ask whether the applicant is available to work an eight to five schedule, whether she is able and available to work occasional overtime or travel for the job. Note that these questions should only be asked if the job actually requires a set schedule, overtime or travel and all applicants are asked the same question.
The only permissible information to seek regarding a disability is whether the applicant can "perform the essential functions of the job, with or without accommodation." Again, this question should be posed to all applicants to ensure -- and be able to demonstrate -- there is no discriminatory intent behind the question. Employers should not ask for specific medical details about the disability or the applicant's family medical history, and should not seek information on current injuries, illnesses, medications or ongoing medical treatment during the interview process.
An applicant's religion is not a relevant -- or legal -- subject for hiring decisions. An employer must not ask an employee what religion he is, whether he attends church on Sundays, whether he will ask to wear religious clothing or want to observe religious holidays. Instead, the employer can ask if the applicant is available to work a particular schedule or on weekends -- again, as long as this is a requirement of the job and the question is asked of all applicants.
Other illegal questions include asking an applicant if she has ever been arrested -- only convictions, not arrests, can be considered during the background process -- whether a former military service member was honorably discharged, whether an applicant has any open workers compensation cases or if she has ever been involved in a lawsuit against a former employer.