Federal and state laws prohibit discrimination in all aspects of employment, and this includes the interview stage. For this reason, employers are tightly regulated in what questions they can ask—and what questions are off limits.
At Sattiraju & Tharney, LLP, we work closely with both employees who feel they have been discriminated against and employers who are undertaking the interview process and want to stay on the right side of the law. Below, we highlight some of the more obvious illegal questions.
Do You Have a Mental Health Problem?
This question violates the Americans with Disabilities Act (ADA) of 1990. This law generally applies to employers with 15 or more employees and prohibits making an employment decision based on a person’s disability. Employers can ask about disabilities, including mental disabilities, after making an offer of employment but only if the question is asked of all employees offered the same type of job.
Other prohibited questions:
- Do you have a physical disability?
- We heard you had cancer, will you need time off for treatment if hired?
Will You Be Having Children Any Time Soon?
Federal law prohibits discrimination on the basis of sex, including pregnancy. Employers should avoid asking questions about whether an applicant has a family or intends to have one.
Of course, employers might wonder if an applicant can keep up with a demanding job. But they can ask other questions to tease out this information, such as how the applicant will respond to an email at 4:00 am or whether the applicant can work weekends.
Other illegal questions:
- Do you think women can do a job this demanding?
- Have you ever been married?
What Country Are You From?
Employers are in a bit of a tight spot when it comes to nationality. On the one hand, they can’t hire someone who isn’t legally authorized to work in the U.S. On the other, federal law prohibits discrimination on the basis of someone’s national origin.
Instead, employers should ask, “Are you legally authorized to work in the U.S.?” and then demand proof when making an offer of employment.
Other illegal interview questions:
- What kind of accent is that?
- Hernandez is a Spanish name, right? Or is it Mexican?
What Is Your Salary History?
Employers used to be able to ask about salary history to gauge whether an employee was a good fit and whether they would take the job. However, New Jersey has made questions about salary and benefits history illegal starting in 2020. Employers face penalties ranging from $1,000 to $10,000 for each violation.
The theory is that employers use this information when setting salaries and that it “locks in” gender inequality in pay. So someone who was paid less at the start of her career will continually get less at each subsequent job.
There are exceptions to the prohibition on asking about salary history:
- Employers can ask about salary expectations.
- An applicant can voluntarily divulge this information, in which case an employer can use it.
- An employer can use this information for purposes of internal promotions or transfers.
Were You Asked Illegal Questions? Contact Us Today
The above are only some of the more apparently illegal questions. There are many landmines that employers must avoid, so contact Sattiraju Law today to discuss your personal situation.