Knowing what you should ask is important. Just as important is knowing what
you cannot ask. Here is an overview of lawful and unlawful questions commonly
asked during the job interview process. This list is provided by Management
Recruiters International.
U.S.
Pre-Employment Inquiry Guide*
Please note: Lawful/unlawful pre-employment inquiries vary by
country/region. Please consult local advisers.
Name
Lawful Pre-employment Inquiries
Applicant’s full name.
“Have you ever worked for this company under a different name?”
“Is any additional information relative to a different name necessary to
check work record? If yes, explain.”
Unlawful Pre-employment Inquiries
Original name of an applicant whose name has been changed by court order or
otherwise.
Applicant’s maiden name.
Address or Duration of Residence
Lawful Pre-employment Inquiries
“How long have you been a resident of this state or city?”
Birthplace
Unlawful Pre-employment Inquiries
Birthplace of applicant.
Birthplace of applicant’s parents, spouse, or other close relatives.
Requirement that applicant submit birth certificate, naturalization, or
baptismal record.
Age
Lawful Pre-employment Inquiries
“Are you 18 years old or older?”
“Are you of a legal age to work?”
Unlawful Pre-employment Inquiries
“How old are you?”
“What is your date of birth?”
Religion or Creed
Lawful Pre-employment Inquiries
You may ask about a candidate’s ability to work on weekends or holidays, if
this availability is job-related. However, you may have to accommodate
candidates’ religious observances that conflict with your interview schedules,
if it is not a burden to do so.
Unlawful Pre-employment Inquiries
Inquiry into an applicant’s religious denomination, religious affiliations,
church, parish, pastor, or religious holidays observed.
Race or Color
Unlawful Pre-employment Inquiries
Complexion or color of skin.
Photograph
Unlawful Pre-employment Inquiries
Any requirement for a photograph prior to hire.
Height
Unlawful Pre-employment Inquiries
Inquiry regarding applicant’s height.
Weight
Unlawful Pre-employment Inquiries
Inquiry regarding applicant’s weight.
Marital Status
Lawful Pre-employment Inquiries
Does this employer employ your spouse? Has the candidate has ever been
known by another name, in order to facilitate accurate background check.
Unlawful Pre-employment Inquiries
Asking a person’s maiden name, gender, marital status spouse, preference for
‘Miss,’ ‘Mrs.,’ or ‘Ms.,’ pregnancy, family plans, or childcare arrangements.
Requirement that an applicant provide any information regarding marital status
or children. Inquiry as to the ability to reproduce or advocacy of any form of
birth control.
Handicap or Disability
Lawful Pre-employment Inquiries
Can you perform the duties of the job in which you wish to be employed, with
or without accommodation? You may inquire about the candidate’s total number of
absences in the previous year.
Unlawful Pre-employment Inquiries
The Americans with Disabilities Act (ADA) prohibits all pre-employment
medical inquiries. Do not ask specific questions about diseases or
illnesses, the number of days the candidate was sick in the previous year,
workers compensation injuries or claims, mental health issues and history, past
addiction, past illegal drug use or current prescription drug use.
Citizenship
Lawful Pre-employment Inquiries
“Are you currently authorized to work in the United States
on a full-time basis for any employer?” If the applicant’s answer is “yes”, you
may then ask “Will you now or in the near future require employment visa
sponsorship (ie, H1B Visa)?” If the candidate’s answer is “no” to your original
question, whether they are currently authorized to work in the United States on
a full-time basis, you may then ask what his or her immigration status is.
(To avoid discrimination claim based on national origin, these questions
should be asked of all candidates, not just “foreign-looking” or
“foreign-sounding” candidates).
Unlawful Pre-employment Inquiries
(Questions below are unlawful unless asked as part of the Federal I-9
process). “Of what country are you a citizen?” Whether an applicant is
naturalized or a native-born citizen; the date when the applicant acquired
citizenship. Requirement that an applicant produce naturalization papers
or first papers. Whether applicant’s parents or spouse are naturalized or
native-born citizens of the U.S.,
the date when such parent or spouse acquired citizenship.
Military Status
Lawful Pre-employment Inquiries
You may ask about job-related military experience or training.
Unlawful Pre-employment Inquiries
Inquiry about military status or type of military discharge. Inquiry
about future military commitments (e.g., reserve status) that may require time
off work.
National Origin
Lawful Pre-employment Inquiries
Inquiry into languages applicant speaks and writes fluently.
Unlawful Pre-employment Inquiries
Inquiry into applicant’s:
a) lineage
b) descent
c) national origin
d) descent
e) percentage, or nationality unless pursuant to the Federal I-9 process.
Nationality or homeland of applicant’s parents or spouse. Inquiries into how
applicant acquired ability to read, write, or speak a foreign language.
Education
Lawful Pre-employment Inquiries
Inquiry into the academic, vocational, or professional education of an
applicant and the public and private schools attended.
Financial Status
Lawful Pre-employment Inquiries
You may perform credit checks if you follow the Fair Credit Reporting Act
Regulations.
Unlawful Pre-employment Inquiries
Inquiry into financial status (unless job-related), past garnishments or
bankruptcy.
Experience
Lawful Pre-employment Inquiries
Inquiry into work experience. Inquiry into countries applicant has visited.
Arrests
Lawful Pre-employment Inquiries
“Have you ever been convicted of a crime?” “Are there any felony
charges pending against you?”
Unlawful Pre-employment Inquiries
Inquiry regarding arrests, which did not result in conviction (except for
law enforcement agencies).
Organizations or Activities
Lawful Pre-employment Inquiries
Inquiry into the organizations of which an applicant is a member, excluding
names or characters which indicate the race, color, religion, national origin
or ancestry of its members.
Unlawful Pre-employment Inquiries
Do not inquire as to a list of clubs, societies, or lodges; or about
smoking, drinking or other legal activities that the applicant may engage in
off-duty. More than 1/2 of U.S. states protect smokers against
employment discrimination based on smoking off-duty, and a growing number
prohibit discrimination based on any lawful off-duty activity.
*Post offer employment paperwork. Many questions that are
inappropriate at the screening stage can become legitimate after an offer is made
and must be answered before employment begins. This will certainly be the
case in regards to reference checking. Other examples of necessary
information include providing a SSN for education verification (if a degree is
a job requirement), date of birth, and work eligibility documents if needed to
verify employment eligibility, process pay or perform a background check.