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5 Job Interview Questions that Are Illegal to Ask

5 Job Interview Questions that Are Illegal to Ask

By Catherine Conlan
Monster Contributing Writer
 
If you’re looking for a new job, you know you’re going to have to answer some tough questions in the interview process. But did you know there are some questions that are illegal for employers to ask you?
 
For example, it’s illegal to ask any questions related to protected classes, says Charles A. Krugel, an HR attorney. “Protected classes typically include race, gender, nationality, religion, military status and age (40 and up). Usually, such questions are intended to identify those class members. More often than not, it's ‘loaded’ questions that are asked, or those where it's fairly obvious that the asker has a hidden agenda and the question has little to do with the job's essential duties.”
 
Some examples of these questions include,”I notice that you live in Brookfield, there's some nice country clubs and retirement communities there -- are you a member of any of them?” and “If you need to commute to work, how would you do that?” The first question can relate to socioeconomic status, gender, race, religion and age, Krugel says., while the second may be looking for information on socioeconomic status and race.
 
Here are five common questions that interviewers shouldn’t be asking, under the law.
 
Who will take care of your children while you’re at work?
 
Even if you’ve shared information about having children, there’s no need for a prospective employer to ask who’s taking care of them, says Tom Spiggle of the Spiggle Law Firm. The law prohibits making employment decisions based on gender stereotypes, he explains. “For instance, that women or men with children are less committed to work than those without.”
 
“Note, however, that it would not be illegal to deny a job opportunity to a candidate who volunteered, ‘I have young children and can't work past 4:30,’ when the job requires evening work,” Spiggle says. “Such a decision would be based on work restrictions offered by the candidate, not because of improper stereotype.”

How did you get that scar/mark/other physical abnormality?
 
“The ADA prohibits not only discrimination against those with an actual disability, but against those who are ‘regarded as disabled,’” says Kelly Kolb, labor and employment attorney at Fowler White Boggs. “Questions about an employee's physical characteristics (to the extent they reflect a perception of disability) are prohibited, just as are questions about a person's actual disability.”
 
Prospective employers may, however, ask if you’re able to perform essential functions of the job, with or without accommodation, Kolb says.

How often are you deployed for your Army Reserve training exercises?
 
Kolb says employers cannot make employment decisions on the basis of a service member's membership or active duty service in the military. “Essentially, the employer cannot ask questions about the effect of the employee's military service on his ability to work for the employer.”

When are you planning on having children?
 
Employers can’t make judgments about a person’s dedication to their work by whether they have kids or will have them in the future. “If the employer wants to find out how committed the candidate will be to the job offered, the interviewer should ask questions such as, ‘What hours can you work?’ or ‘Do you have commitments aside from work that will interfere with specific job requirements such as traveling?’” says Davida S. Perry of Schwartz & Perry.
 
Even an innocuous question such as “when is your baby due?” to an obviously pregnant applicant can cause problems, says Lisa Schmid, an attorney at Nilan Johnson Lewis. “It is not illegal under the Pregnancy Discrimination Act, but it presents a risk for employers because it obviously seeks information about an applicant’s pregnancy, and discrimination on the basis of pregnancy is illegal.” Also, there may be state laws that explicitly prohibit asking about a pregnancy.

Have you ever been arrested? 
 
It’s legal to ask about whether candidates have been convicted of a crime, but not if they’ve been arrested, says Shari Shore of Wolf and Shore Law. Cases may have been dismissed without a conviction, or the original charges may have been lowered to lesser charges. 

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