Illegal Interview Topics: Cautions and Considerations

Whenever I’m hired to do interview prep, I always start with a mock interview so I can get a baseline of where the client is and what they need to work on the most. It is rare that the individual doesn’t disclose information that would be illegal for an interviewer to ask in an actual employment-seeking situation. When I bring this up in the debrief, they are often unaware that anything is illegal in the first place! In this post, we will go over what information is illegal, what the questions could look like in an interview, and how to decide if disclosing this information is the right thing for you to do.

Interviewing is often compared to an interrogation because the interviewer’s job is to probe for information. They ask a bunch of questions in order to find out everything they can about their interviewee so that they can then make the right hiring decision. While there is nothing wrong with this, there are some interviewers that will try to gather information that is illegal to ask because of the potential to impact the interviewee’s chances of getting the job. As you’ll see below, the key point that makes these topics off limits is that they have nothing to do with an applicant’s ability to do the job. Rather, they’re personal details that could be deemed either positive or negative based on the whims of a particular employer.

[Note: This is a very United States-centric post because of the distinct laws and legal history of my country. If you’re concerned about what an interviewer can and cannot ask in your country, definitely do your research. There are similar protections outside of the USofA, but I don’t know enough about the specifics.]

race and ethnicity

Information regarding race and ethnicity is illegal because of the history of racism and racially discriminatory hiring practices. Until the Civil Rights Act of 1964 created the Equal Employment Opportunity Commission (EEOC), employers regularly passed over qualified applicants because of their race or ethnicity. There are stories of lighter-skinned people of color who would pass for white to get better jobs. (Some members of my family were part of this group.) While times have changed since the passage of this legislation, and being a person a color won’t automatically exclude you from a position, there is still evidence of discrimination in hiring. A recent study (discussed here) showed that white men are still much more likely to get hired than people of color, despite having equal or lesser credentials.

Since race and ethnicity can sometimes be visibly assessed for (maybe not accurately, but it’s still clear when an interviewee isn’t white), interviewers typically don’t ask questions about it. Also, since they’re some of the more obviously illegal pieces of information, many interviewers avoid discussion of them altogether as a CYA (cover your ass) move.

gender identity and sexual orientation

Similar to race and ethnicity, gender identity and sexual orientation are covered through the Civil Rights Act of 1964, though they were added much later. This information is illegal because, similar to race and ethnicity, there is a history of employment discrimination related to gender identity and sexual orientation. Unlike race and ethnicity, however, there are still places where this type of exclusionary behavior is okay – and even applauded. The recent spate of anti-transgender rulings is clear evidence of this. As of 2015, only 22 states and the District of Columbia had specific rules about employment discrimination based on gender identity and sexual orientation. (Check out this map to see if you live in one.)

Questions that could try to gather this information in a round-about way would be ones that focused on your outside of work activities. For example, an interviewer asking things like “What professional organizations are you part of” or “How do you spend your free time” could lead an unprepared interviewee to disclose such information.

marital and/or parental status

An employer would be interested in your marital and/or parental status because it could factor into how much time you would need to take off for various family-related events or give insights into your general lifestyle. A few examples: If you’re a newlywed (or engaged) woman, the employer could assume that you’ll soon be starting a family and not want to deal with a new employee on maternity leave. (This assumption is also why women are paid less than men and pay more for health insurance.) If you’re a mom with kids the employer could assume that you’re going to be in and out of the office for school-related events. If you’re not married, the employer could make assumptions of your sexual orientation or general lifestyle that run counter to their beliefs. The key to all of this is negative employer assumptions. This information is illegal in an interview because it has nothing to do with your ability to do a job, and everything to do with the employer potentially judging you based on your personal life.

An interviewer who is trying to discover this information could ask you directly about your family situation (rare), or inquire about “responsibilities” that could take you away from work.

ability status

The American with Disabilities Act (ADA) of 1990 made it illegal for a potential employer to discriminate against applicants based on their ability status. While the individual can’t have a disability or disorder that is a major function of the job, the employer cannot exclude someone from their applicant pool because they do not want to provide the “reasonable accommodations” that are required by this law. This hold true for both physical and mental disabilities, though the former are typically easier for the interviewer to discern. Curiosity about mental ability is often satisfied by past performance in academic settings or in similar jobs. Unfortunately, assumptions about mental dis/abilities are often tied to stereotypes that surround an individual’s specific group (usually racial or ethnic), so this could potentially be doubly oppressive to an interviewee whose interviewer holds such prejudices.

Inquiries about ability status could revolve around accommodations or health. Be wary of how you answer questions like “What would we need to give you in order for you to be successful in this position” and “Are there any physical reasons that would make you unable to perform specific aspects of this job.”

age

It is illegal for an interviewer to ask a candidate’s age because this information has nothing to do with whether or not they are qualified for a position. In the vast majority of fields, there isn’t an age limit on the ability to acquire skills or perform them at a high level. (Off the top of my head, the only “industry” that I can think of where this could be a thing is professional sports.) But age discrimination is very real. Individuals who are over 40 face a difficult time on the job market because employers 1) believe that they won’t be in the workforce for much long and don’t want to waste resources on them, 2) don’t think they are technologically experienced enough to handle the demands of today’s workplace, and 3) don’t want to pay them at a rate commensurate to their experience. As the economy recovered from the Great Recession, for example, laid-off individuals from this group faced tremendous challenges with regaining employment because of these (and other) assumptions. Many of them were forced to take positions that were lower than the ones they separated from or completely changed fields because they needed to find an income.

Round-about ways that interviewers could try to determine your age is to ask about graduation dates or bring up generational or cultural markers that could reveal such information.

religion

An interviewer would be interested in an interviewee’s religion for both personal and professional reasons. On the personal side, they might share a common faith and be able to build rapport over it. On the professional, they may want to know if you’d be taking time off to observe religious holidays. While these are seemingly legitimate reasons to get this information, it’s illegal to ask about religion in an interview because it doesn’t have a bearing on how the applicant will do in the job. Most importantly, an applicant’s lack of religion or belief in a faith that runs counter to the interviewer’s beliefs could have an negative impact on their job prospects, even if they are otherwise qualified for the position.

Interviewers who are curious about your religious affiliation could ask about holidays or outside of work activities as ways to get this information. I’ve also seen some directly ask about membership to a specific religious institution, but this is rare.

national origin and/or citizenship status

While certain employers will need this information in the hiring process – like the federal government, organizations that deal directly with them, or if they’ll have to attempt to get sponsorship – in general, asking interviewees about their nationality and/or citizenship status is illegal. The reason is one that should be familiar to you this far along in the post – stereotypes, assumptions, and discrimination. In terms of nationality, an interviewer could have negative views of a country or region based on world events or personal perception. With citizenship status, and interviewer could force an undocumented immigrant to disclose this status, which would have implications far beyond employment. It is okay if the interviewer asks about the interviewee’s work authorization, however, because it doesn’t automatically belie citizenship. Undocumented individuals with deferred action status, for example, are able to work legally in the United States despite their status.

There aren’t very many covert ways to gather nationality or citizenship information, so expect these to be more direct… Especially if you have an accent.

substance use/abuse history

Since addiction is a disability covered under the ADA, asking about past substance use and abuse is illegal. While it is inadvisable for a recovering addict to work with or around the substance they were addicted to, it is not legal for an employment decision to be based on the applicant’s medical history. Questions surrounding this are rare, but if you fall into this category keep your rights in mind.

Key take-away points

  • Certain information is illegal in an interview because it can unduly sway the interviewer’s opinions of the interviewee based on personal factors that have no bearing on the individual’s ability to perform the functions of the job.
  • Be wary of questions that ask about outside of work activities and responsibilities, as they could be attempts to gather such information in an indirect way.
  • You don’t have to answer any question – illegal or otherwise – that makes you feel uncomfortable. If you get such inquiries in an interview, you should question whether or not that organization is a good place for you to be.

Even though it is illegal for interviewers to ask for this information, it is ultimately up to you to decide if you want to disclose things on your own. If you find yourself in a situation where the best answer to the interviewer’s question involves sharing, then it may work in your favor to do so. For example, if you’re actively involved in professional organizations related to a particular affinity group, then it could be useful to discuss your experiences with them. Or if you’re a mom who is looking to reenter the workforce after raising kids, then talking about your parental status is inevitable since it explains your employment gap. Or if you’re applying to be a translator and your proficiency with the language is based on your country of origin, then it would probably help you to say that in your interview. Personally, I have discussed my experiences as a Black woman in interviews in the past because I’m of the mind that, if an employer doesn’t want to hire me because of my identity then I don’t want to work for them. (I also recognize that not everyone is in the position to do this.)

As long as you’re comfortable with the interviewer having personal information beyond what they are able to ask, then say what you feel is right. If you’re at all unsure of how this information will be used, however, then it is probably best to keep it to yourself.

{Want more tips? Check out the Interviewing With Confidence series and learn how to efficiently and effectively prepare for your next interview!}

About

Dr. Lindsay is career development & academic success coach who loves helping people figure out and proceed to the next levels of their lives.