Asking illegal or inappropriate interview questions is one of the easiest ways for an employer to create a risk for discrimination claims. It isn’t unusual for polite, friendly, personal, non-job-specific conversation to be part of the interview process. However, when conducting an interview, you must always be aware that even indirect or inadvertent questions about a protected characteristic can give rise to a discrimination claim. 
Friendly may mean illegal
Although the purpose of a job interview is to gather as much information about a potential employee as possible and most questions are perfectly legal, some simple and seemingly innocuous interview questions are illegal or very inappropriate. The interviewer’s questions should be focused on the behavior, skills, and experience needed to perform the functions of the job for which the applicant is applying. Sometimes, however, the discussion veers off course, and the applicant may volunteer personal details that reveal protected class information or characteristics. If that occurs, the interviewer must steer the discussion back to job-related interview questions.
Federal and state laws prohibit discrimination based on various protected categories such as race, religion, gender (including pregnancy), national origin and citizenship, age (over 40), disability, genetic information, marital or family status, sexual orientation, and military discharge status. Depending on the law in a particular jurisdiction, it may be illegal to base hiring decisions on any of those criteria. Therefore, when you’re conducting a job interview, you cannot ask questions that could reveal such information.
Interview do’s and don’ts
To decrease the risk of a discrimination claim or even the appearance of unlawful discrimination, the interviewer should avoid illegal or inappropriate questions and ask only legally acceptable questions to obtain the necessary job-related information about the applicant. Here are some examples of what you can and cannot ask:
National origin and citizenship
Illegal/inappropriate: How long has your family been in the United States? Are you a U.S. citizen? Is English your first language?
Acceptable: Are you eligible to work in the United States? Which languages do you read, speak, or write fluently?
Marital status and pregnancy or parental status
Illegal/inappropriate: Are you planning to have children? How many children do you have? What are your childcare arrangements? What is your marital status?
Acceptable: Would you be willing to relocate if necessary? Would you be able to work an 8:30 a.m. to 5:00 p.m. schedule? Would you be able to work overtime hours? Would you be willing to travel as needed?
Disability
Illegal/inappropriate: Do you have any preexisting health conditions? Are you on any medication? Have you ever had a drug or alcohol problem?
Acceptable: Can you perform the essential functions of the job, with or without reasonable accommodation? Do you currently use illegal drugs?
Religion
Illegal/inappropriate: What is your religious affiliation? Which religious holidays do you celebrate? Do you attend church every week?
Acceptable: Can you work weekends?
Age
Illegal/inappropriate: How old are you? When were you born? When did you graduate from college? I went to school there too; what year did you graduate? How long do you plan to work until you retire? How long have you been working?
Acceptable: Are you over the age of 18? How long have you been working in this particular industry?
Veteran or active-duty military
Illegal/inappropriate: Was your military discharge honorable or dishonorable?
Acceptable: What type of training or education did you receive in the military?
Remember that even the acceptable questions should be asked of all applicants—and only if they’re reasonably related to the job qualifications for the position being filled. To avoid straying into an illegal or inappropriate line of inquiry, prepare an outline for the interview that contains only job-related questions. Don’t make “small talk.” However, if the interview veers off course, steer the conversation back to job-related questions. Having an outline, and sticking to it, will go a long way toward protecting your company and the interviewer from discrimination claims.
Bottom line
Don’t let an interview turn into a chat session. The interviewer’s questions should be focused on the behavior, skills, and experience necessary and reasonably related to the job for which the applicant is applying.
Michelle Dougherty is an attorney with Steptoe & Johnson, practicing in the firm’s Wheeling, West Virginia, office. She may be contacted at michelle.dougherty@steptoe-johnson.com.