newton software illegal interview questions

Interviews have been around for a long time, dating back to ancient times when you would start as an apprentice for your desired trade and work your way up over time. However, what we would call the “modern” interview did not come about until 1921 when more college-educated individuals were entering the workforce and a system was needed to filter through the influx of candidates. Queue Thomas Edison.

In 1921 Edison came up with a written test designed to test a candidate’s knowledge for executive positions at his many companies. Simply called “The Edison Test”, it was made up of 160 questions that required candidates to memorize obscure bits of information to be recited back when asked. Edison believed memorization to be the most important quality in a candidate, famously saying “When I call upon one of my employees for a decision, I want it right away. When their department calls upon them for decisions, it wants it right away.”

Thankfully, we have come a long way since Edison, but that isn’t to say there haven’t been some bad practices picked up along the way. There are many questions that you shouldn’t be asking because they are just bad questions, but there are also many questions that you cannot ask due to legality. In this article we will go over what those questions are, how to be EEOC compliant and general topics that are off limits in the interview process.

Why Are Certain Questions Illegal?

It can be a slippery slope when it comes to which questions are actually “illegal”. For example: 99% of the time, it is illegal to ask a candidate how old they are. However, in some cases (such as when hiring a bartender) it is necessary to know that somebody is of at least a certain age.

The reasoning behind certain questions/topics being illegal during the interview process is because of the EEOC. Having an even playing field (except for the experience that candidates bring to the table) when it comes to interviewing for a job makes for a healthy and diverse work environment. In addition, having people from different cultural/racial/religious backgrounds harbors new and innovative ideas, so although it may seem tedious and limiting to have to be wary of the questions you ask during an interview, it can only benefit your organization in the long-term.

What is EEOC Compliance?

The EEOC was born out of the Civil Rights Act of 1964 and is aimed at protecting potential employees against discrimination. Originally it only covered race, color, religion, sex and national origin, but in years since has been expanded to age, disabilities, genetic information, veterans and sexual orientation.

Although the EEOC is usually only talked about during the hiring process it covers almost all parts of an organization’s interaction with its employees including: advertising, applicant referrals, firing, hiring, promotions and wage transfers. When it comes to EEOC compliance it is always better to err on the side of caution and make sure that you are not discriminating in any way. Not only is it illegal to discriminate, but it also harms your work environment by limiting the amount of unique opinions and ideas you have at your disposal.

Topics You Can’t Ask About

Most everybody has seen a list of what topics you can and can’t discuss during an interview. However, there is a lot of gray area for certain topics where it may be ok to ask certain information as long as it pertains to the person being successful in their prospective role. We aren’t lawyers here at Newton so none of this should be taken as legal advice, but we hope to provide some helpful guidelines to follow. If there are any situations where you feel unsure as to whether or not you can ask that question, either don’t ask it, or better yet, speak with your legal counsel.

  • National Origin & Citizenship – The only questions you can ask related to this are whether or not somebody is eligible to work in the United States, if they are able provide to proof of citizenship/visa, if they are known by any other names and if they can read/write English (if applicable to the job duties).
  • Religion – Do not ask.
  • Sex, Gender Identity or Sexual Orientation – Do not ask.
  • Disabilities – All that is permitted here is to ask the candidate if they are able to perform the duties required for the job.
  • Age – As we touched on earlier, for some jobs – such as a bartender – it is required to have somebody who is a certain age for legal requirements. Besides edge cases like this, do not ask about age.
  • Marital Status – Do not ask.
  • Pregnancy Status – Do not ask about this. However, it is ok to make sure that the candidate does not have any commitments outside of the workplace that would prevent them from doing the job (upcoming travel, regular absences from work, work schedule conflicts). The reason why you can ask this is that it doesn’t make the candidate divulge any information that would be considered illegal. If the candidate does for some reason divulge information such as family make-up or pregnancy status, you cannot take this information into account when making a hiring decision. It is better to be as direct as possible with your questions so you don’t become privy to information that can get you in a tough spot.
  • Race & Color – Do not ask.
  • Military Service – If you know that the candidate has had prior experience in the military it is ok to ask how their experience in the armed forces translates to the role at your organization. However, it is best to only touch on this in an interview if the candidate brings it up themselves. Not everyone in the military likes to talk about their experiences, even if it is just skills and best practices they have learned.



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