When interviewing job applicants, there are good questions and bad questions. A good question seeks relevant and helpful information about the person applying for the job and about the applicant’s job qualifications consistent with a business necessity for asking the question.  A bad question seeks personal information that is irrelevant to the applicant’s job qualifications and lacks any business necessity for asking the question.  A bad question may be used as evidence of an unlawful discriminatory hiring practice.    

Title VII of the Civil Rights Act of 1964 and similar state laws generally prohibit discrimination against employees and job applicants on the basis of race, color, religion, national origin, sex (gender), ancestry, age, disability or even sexual orientation.  A job applicant need not prove that he or she was not hired because of unlawful discrimination, only that unlawful discrimination was a motivating factor in the decision to not hire the applicant.  Such proof can be direct or circumstantial.  Asking a bad question can be the direct evidence of a discriminatory motivating factor that an unsuccessful applicant needs to file a charge and pursue you in a lawsuit. 

When interviewing, you do not want to hand the job applicant direct evidence of unlawful discrimination. You want to ask only good questions.  A bad question can get you into a lot of trouble.  The trick is to know what a bad question is and why it is bad.  

Here are the Top 10 bad questions employers should never ask a job applicant: 

1. Are you married?  

This is a common question that seems fair enough.  Single people without families usually have more time to do their job.  Asking a job applicant, especially a female job applicant, about her marital status, however, likely has nothing to do with her qualifications for the job or any business necessity and may be seen as a question based on stereotypes attributed to her sex or about her sexual orientation.  As a general rule, it is best to stay away from any question about a job applicant’s personal life.   

2. Do you have children?

For these same reasons, you should not ask a job applicant whether he or she has children or wants to have children.  If you want to know something about the applicant’s willingness or ability to devote time to work, ask those questions.  What hours can you work?  Do you have other commitments or activities that may interfere with the job’s requirements (such as traveling)?  Can you or will you work overtime or on weekends? You can find out what you want to know without asking a bad question about a job applicant’s personal life.  

3. Have you ever been arrested?  

Most employers would like to know this, but for most jobs they should not ask the question.  In this country, people are assumed to be innocent until proven guilty.  Without a conviction or a plea agreement, being arrested does not mean someone is a bad person, and being arrested, but innocent, has nothing to do with job qualifications or business necessity.  Moreover, a statistically disproportionate number of racial minorities are arrested or wrongly accused of crimes.  The EEOC reports that African Americans and Hispanics are arrested at a rate two to three times their proportion of the general population.  So asking the question itself may be seen as unlawful race or national origin discrimination.  

On the other hand, you may ask whether a job applicant has been convicted of a crime and, with the applicant’s written permission, conduct a criminal background check to test the answer.  Of course, you must ask such questions of every applicant, not just minority applicants. You may also ask about the specific conduct that concerns you, rather than an arrest record, if the conduct is job related and consistent with business necessity.  Ask whether the applicant has ever stolen from his or her employer, rather than whether he or she has ever been arrested for embezzlement. 

4. Do you go to a church or synagogue?  

Unless you are a church or synagogue, you should never ask a job applicant about his or her religious affiliation.  Title VII prohibits religious discrimination in any form.  This includes failing to hire an applicant because of his or her sincerely held religious beliefs.  Religious beliefs are personal and in most cases wholly irrelevant to any job qualification or business necessity.  You can, however, ask if someone is available or willing to work on a Saturday or Sunday if the question is job related and consistent with business necessity.  

5. Do you belong to a club or social organization?  

This seems like an innocent question, but it isn’t. Asking about a job applicant’s club affiliations or social activities could be seen as asking about his or her religion, ethnicity or sexual orientation, things that usually have nothing to do with job qualifications or business necessity.  The problem is that clubs and social organizations often reflect an applicant’s religious and cultural beliefs.  Stay away from asking anything that may be seen as probing such beliefs.     

6. Where are you from?  

This also seems like an innocent question, but if the job applicant has a foreign accent or is acting like someone who is not from around here, asking where he or she is from may look like unlawful natural origin discrimination.     

7. How is your credit?  

Like an arrest record, being in debt or having a bad credit score does not mean someone is a bad person and likely has nothing to do with job qualifications or business necessity.  By law, employers have to obtain an applicant’s permission and follow strict federal guidelines before investigating someone’s credit history. And even then they run the risk of violating Title VII because of the statistically disproportionate number of racial minorities who are unemployed or are in debt or have bad credit. Unless there is some strong relation to job qualifications or business need, you probably should not ask the question.      

8. Do you drink?  

Employers may frown upon drinking or drug use, but should not ask a job applicant about such things because alcoholism and drug addiction are disabilities protected by the Americans with Disabilities Act of 1994, as amended, and similar state laws that prohibit discrimination on the basis of qualifying disabilities. It is the disability, not the behavior, that is protected, however, and being drunk or high at the interview is not a protected behavior.  You can, however, ask an applicant if he or she is currently using illegal drugs, except that, in Arizona, you should not ask a job applicant whether he or she is a medical marijuana patient. You can also condition an applicant’s employment on passing a drug screening test after he or she is hired, but you must comply with Arizona laws that govern that process.        

9. How much longer do you plan to work before retiring?  

You might as well ask: How old are you anyway? The question alone may violate the Age in Employment Discrimination Act of 1967 and similar state laws that prohibit discrimination in employment decisions based on a job applicant’s age of 40 or more years.  You may not ask how old the applicant is, and you should not ask any question that may be seen as gathering clues about the applicant’s age.  You may, however, ask questions about the applicant’s experience in the type of work he or she is applying for, what the applicant’s long term career goals are, and similar job-related questions that do not have anything to do with his or her age.

10. When is your baby due?  

Trust me on this one.  Even if the job applicant looks as if she is about to give birth during the interview, do not ask her if she is pregnant or when her baby is due or anything about her obvious condition.  In fact, never ask any applicant if she plans to get pregnant, whether she wants to have children or anything remotely related to pregnancy issues.  Asking such questions may be seen as a violation of the Pregnancy Discrimination Act, an amendment to Title VII that expressly prohibits discrimination based on such issues.  It has also been characterized as sex discrimination under Title VII due to the statistically disproportionate number of men who are or can become pregnant. 

CONCLUSION

Employers sometimes complain that their hiring decisions are most often based on a good impression or subjective criteria that cannot be easily defined or articulated.  There is nothing unlawful about going with your gut, but if a charge is filed and you are sued, your defense that an applicant gave a bad interview or did not feel like a “good fit” won’t get you very far, especially if you have provided the applicant with direct evidence of discrimination based on the questions you asked in the interview.

You or your hiring staff should use this Top 10 list as a reminder of the red flags that can wave during a job interview.  To be safe, you should have your legal counsel review your application forms and perhaps help train your staff to ask the right questions.  You may also want your legal counsel to assist you with a standard interview process to assure that all applicants, regardless of sex, race, color, religion, national origin, age, disability or sexual orientation, are asked the same questions.  Paying an attorney to help avoid problems is far better, and cheaper, than paying for the defense of a lawsuit.