Most employers are aware that there are numerous obvious questions that are simply “off limits” and should not be asked of an applicant during an employment interview. For example: How old are you? Do you have a disability? Are you pregnant?
But, there are many other questions that, on their face, many not appear to be discriminatory, but are still legally troublesome. These loaded questions either (1) imply that a protected characteristic will be a factor in the hiring decision, or (2) will elicit information that will put you on notice that the individual falls into a protected classification. Unfortunately, if you don’t hire the applicant, he/she will assume his/her answer to one of these questions was the primary reason for being rejected, and file a discrimination charge.
Here’s several legally risky questions one should avoid asking during an interview:
1. “Do you have kids?” Similarly, “Are you planning on having kids?” “What kind of childcare arrangements will you make?” Problem: gender discrimination; pregnancy discrimination; “caregiver” discrimination. Do you ask this of all applicants, or only female applicants?
2. “Your last name is so unusual. What nationality is it?” Problem: national origin and/or ethnicity discrimination. Do you ask caucasian applicant Michael Smith this? Nothing good can come from the knowledge you obtain from this question. Control your genealogical curiosity, and don’t ask.
3. “Is your spouse ok with moving to _______ for the job?” Similarly, “Will your spouse be ok if you have to travel a lot for the job?” Problem: gender discrimination; sexual orientation discrimination; marital status discrimination. Do you ask this of all applicants, or only female applicants? What if they refer to their “partner” of the same gender, or that they’re divorced? Now you have knowledge of something personal that is irrelevant to whether the applicant can do the job. Given that some states prohibit sexual orientation and marital status discrimination, in addition to gender discrimination, you face a triple threat.
4. “What year did you graduate from high school / college?” Problem: age discrimination. Do you ask this of all applicants, young and old? Or just those who look older? One can easily approximate the applicant’s age with the knowledge of a high school and/or college graduation date. A savvy applicant will assume you asked it to figure out how old he is, and suspect age discrimination is at play.
5. “Have you ever been arrested before?” Problem: race discrimination; arrest/conviction record discrimination. The EEOC has taken the position that asking about arrests and convictions may lead to a discriminatory “disparate impact” on minority candidates. Generally, asking about a past arrest that did not result in a conviction is very risky. Several states and cities also have prohibitions on what can be asked regarding an applicant’s arrest and/or conviction record. Employers should be aware of any state and local laws before asking these questions.
Answers to the above questions are generally not relevant to whether the applicant can perform the job’s essential functions. Bottom line – if there is no business reason to ask them, and often only leads to bad things (i.e. a lawsuit), don’t ask them.
Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202