SmartRecruiters Blog

Legal or Not? The Answers on Asking Interview Questions

Some think that, during an interview, it’s the candidate who is in the hot seat. But often, the tables are turned.

Every recruiting and hiring professional knows that interview questions can be a dangerous area. We’ve all heard stories about expensive action taken by a candidate who has been asked illegal questions—putting the interviewer and the company in the hot seat instead.

Regulations are designed to avoid blatant bias and encourage diversity, which we all embrace. In many cases, however, we need specific information to make an informed hiring decision, but asking these questions in a compliant manner can be tricky.

In most cases, however, you can get answers you need. It’s often not what you ask, but how you ask that makes the difference.

One rule of thumb that’s best to follow for interview questions: ask yourself if the questions are candidate related or job related.

Tread carefully when asking candidate related questions. If you’re asking about the ability to perform a specific job, it’s more likely to be an appropriate question to get the information you need to make a decision.

Keeping interview questions focused on jobs

Here are a few examples that illustrate my point:

  • Work schedule: Let’s say you’re hiring for a position that requires Saturday working hours. Some who strictly follow specific religions may not be able to do so.  Asking a question about a candidate’s religion is illegal. Asking if a candidate has any limitations on schedule availability is appropriate.
  • Disability: You cannot ask a candidate directly about their health or disabilities. But perhaps you’re hiring for a role that requires frequent travel. Asking a question about availability for traveling and what accommodations they may need to do so can be a legitimate question.
  • Family status: You are not allowed to ask questions about an applicant’s family or whether they plan to start a family. You can, however, ask a question about whether that candidate can accept a job with a work schedule that requires a specific level of flexibility.

Do you see a pattern here? Questions that may be important in evaluating a candidate’s suitability for a job can often be asked, but only if you ask about it in terms of the job, not about the candidate. These types of questions must be asked very carefully, or not at all.

Obviously, questions about race and ethnic background are illegal and should never be asked. Asking about gender can also be risky (unless it’s specific to a specialized role, such as working in a locker room).

Be consistent: Maintain ongoing training

The best way to stay out of hot water on interviewing practices is to maintain consistency in your questions and processes. Avoid the tendency to allow hiring managers to “wing it.”

Ongoing training can help make sure your organization remains compliant. After all, studies have shown that up to 20% of employers unknowingly ask questions that may be illegal and up to 30% of hiring managers often can’t even tell if a specific question is legal or not.

It’s all about the job

In the end, an interview can be both informative and compliant when questions are focused on the job to be filled. Ask about skills, experience, stories of how a candidate has succeeded or even has failed and what they learned.

Lead with questions like these and avoid asking about a candidate’s specific attributes. That will keep you out of the hot seat, help protect against potential legal action, and allow you to make more informed hiring decisions.

Nick Ricciardi