5 Questions You Can’t Ask a Prospective Employee in a Job Interview

Sure, you know not to ask about pregnancy. And marriage. And race. And sexual orientation. And a handful of other no-no topics that simply can’t be part of a job interview. You probably can ask about the beanie (unless it’s part of an obscure religion, in which case: avoid), but do you know to also avoid these questions, below, culled from legal writings by lawyers and law firms on JD Supra?

5 Questions You Can’t Ask in a Job Interview:

1. How’s your health?

Why? Because “the Americans with Disabilities Act prohibits questions such as those relating to an individual’s past medical history or present medical condition and those related to an individual’s health asked prior to a contingent offer of employment.” (From A Successful Employment Relationship Starts With A Good Interview by Fisher & Phillips LLP) Oh, and by the way, from the same article, a heads up: can’t ask if the candidate lives with parents. Now you know.

2. Interesting name, what’s the story?

As with all of these topics, there are work-arounds, but any question about a name “”that would divulge marital status, lineage, ancestry, national origin or descent. (i.e., ‘If your name has been legally changed, what was your former name?’) (‘Your last name is McConnaghy, so I assume you’re Irish?’)” is a no-no. The workaround: “What name are you know to the references you provided us?” (From What You Can and Can’t Ask in an Interview by Laura Hazen.)

3. Nice accent, where’d you get it?

Attorney Curtis Smolar at Ropers: “Even if the origin of the accent is clear, don’t ask. Accents can be interpreted as asking where the candidate is from. Discrimination based on national origin is illegal. It may seem like small talk, but avoid the question…”  (From 5 Questions You Should Never Ask a Job Candidate by Ropers Majeski.)

4. When did you graduate high school?

Why? It’s about uncovering age. Curtis Smolar again: “Even if your candidate appears straight from high school, avoid any questions that are related to age. Likewise, don’t ask a question that cannot be answered without giving away their age. You can ask the candidate what degree they have, especially if the position requires a certain educational background…” (From 5 Questions You Should Never Ask a Job Candidate by Ropers Majeski.)

5. Have you ever been arrested?

Questions about arrests are different than questions about convictions, as Laura Hazen points out (in her article above). “Remember, an innocent person can be arrested.” On the other hand, it’s okay to ask about convictions (“Have you ever been convicted of any crime”) EXCEPT in Philadelphia (you have to wait for a second interview before you can ask) and Massachusetts (again, can’t raise it in initial application/interview, but can investigate later). Whew. (From New Philadelphia Ordinance Restricts Employer Inquiries About Applicants’ Criminal Convictions by McNees – and Massachusetts Restricts Employers’ Use Of Criminal Record Information by Foley & Hoag LLP.)

…Now you do know.

Bonus links, because we know just how much you’d rather be reading about hiring, firing, and social media versus reading that pile of resumes on your desk:

The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree (by McNees) and

Social Media Research + Employment Decisions: May Be a Recipe for Litigation (by Michelle Sherman at Sheppard Mullin).

Follow Labor & Employment Law updates on: LinkedIn | Twitter | Facebook | JD Supra