Protect your rights: Navigating illegal job interview questions

Jan 31, 2023 - updated Aug 17, 2023

5 mins

Protect your rights: Navigating illegal job interview questions
Kim Cunningham

Editor at Welcome to the Jungle

Are you familiar with the types of questions that are deemed illegal during a job interview? With a significant amount of discrimination and bias existing within the hiring process, job hunters need to know their rights and the warning signs to look out for. These red flags can range from questions about a candidate’s age, religion, or sexual orientation, to even inquiries about their prior arrests and salary history.

It’s crucial for individuals seeking employment to be aware of these illegal interview questions in order to safeguard their rights and ensure a fair and equal opportunity in the job market. Stay informed, stay protected, and take control of your job search by understanding what constitutes an illegal job interview question and what to do if you’re asked one.

What constitutes an illegal job interview question?

Illegal job interview questions are those that pertain to a candidate’s protected characteristics, such as age, race, religion, sexual orientation, and more. Questions relating to any of these topics are considered discriminatory and, according to federal and state laws, are not allowed to be asked by recruiters or potential employers. The purpose of these laws is to ensure that everyone has an equal opportunity to be considered for a job, without discrimination based on their protected characteristics.

Certain questions can be illegal even if they’re not intended to discriminate. Employers and recruiters may inadvertently ask illegal questions without being aware of the issues surrounding them, the impact they may have on a candidate, or the potential repercussions that may ensue. In many cases, they could simply be trying to make small talk, but these questions can still be considered illegal.

Examples of illegal job interview questions

The following is a list of questions a recruiter cannot ask you in an interview, as indicated by the New York State Bar Association—but note that these questions may vary depending on your state or city.

  • Questions about race: For example, “Are you biracial?” and “Where does your name originate from?”
  • Questions about religion: For example, “Do you believe in God?” or “What religious church do you attend?” An employer can, however, ask you if there are specific times you cannot work.
  • Questions about ancestry and origin: For example, “Where were you born?”, “What is your native language?” or “Where is your accent from?”
  • Questions about citizenship: For example, “Are you a US citizen?” However, an employer may ask if you are legally allowed to work for them in the US.
  • Questions about age: For example, “When did you attend high school/college/grad school?” Consider keeping the dates of your education off your resume too. That said, an employer is allowed to ask if you are over the age of 18.
  • Questions about sexual orientation, gender, and gender identity: This includes any type of question that insinuates a particular gender identity or sexual orientation. Keep in mind that asking to confirm which gender pronouns you prefer is allowed.
  • Questions about disabilities: For example, “Do you have any pre-existing health conditions?” or “What medications are you currently taking?” Bear in mind that a potential employer can ask you if you will be physically able to perform specific job functions with or without reasonable accommodation.
  • Questions about marital and familial status: For example, “Are you/do you plan on getting pregnant?”, “Is your partner employed?” or “Have you ever had an abortion?” If an employer needs to know specific details of your personal life, they may ask if you will be able to work the specific job’s schedule, and what days or shifts you will be able to work. This applies only if all candidates are asked these same questions.
  • Questions about arrest and conviction: For example, “Have you ever been arrested?” However, a potential employer may ask if you have any pending arrests. Keep in mind that any previous arrests or convictions you have will show up if the employer conducts a criminal background check.
  • Questions about military service: For example, “Will you be deployed soon?” However, questions about what you did in the military and how the skills you developed could apply to the position in question are allowed.
  • Questions about unions: For example, _How do you feel about unions?” or “Have you ever been a member of a union?”
  • Questions about credit: For example, “Do you have a bank account?” or “Do you own or rent your home?”
  • Questions about your previous salaries: While a question like, “How much did you make in your last job?” is not allowed, a potential employer can ask you where you previously worked, how long you stayed, and [why you are leaving your current job]((
  • Other illegal job interview questions include, “Do you smoke?”, “How much do you weigh?”, “What is your social security number?”, and “What are your political beliefs?”

What to do if a recruiter asks you an illegal question

How you handle the situation will depend on the severity and the type of question you were asked, but of course, it’s ultimately up to you how you choose to react. If, for example, during a pre-interview, casual chat with the recruiter they ask about your family situation, politely declining to answer the question is completely within your rights, as is answering if you feel comfortable to do so.

Should you decide to continue with the interview after being asked an illegal question, there are some ways you can go about providing an answer that can protect you from bias or discrimination. TikTok content creator Erin McGoff shares career advice for job hunters on the platform and provides examples of ways you can answer these types of questions.

In her videos, McGoff shares that while most recruiters will know what questions are off-limits, you could find yourself in an interview with someone who is unfamiliar with these laws. For example, if you’re asked about your marital status, responding with something like, “Could you let me know how that question pertains to my ability to do this job?” would let the interviewer know that this is not an appropriate question to ask. If you need to clarify, you can politely tell them it is against the law to ask for this information. Alternatively, McGoff suggests simply responding with something like, “I’m not sure I feel comfortable answering that right now.”

Another example McGoff gives in her videos is how to handle being asked about your race or ethnicity in an interview. She suggests a firm and effective response such as, “I don’t think that question affects my ability to perform this job and I’d be more comfortable moving on.” If the recruiter becomes persistent or defensive, McGoff suggests using a phrase like, “I would just prefer to talk about my professional background and relevant experience.” This way, you can redirect the conversation back to your qualifications for the job and diffuse any tension.

Remember that you are not obligated to continue the interview if you are made feel uncomfortable or discriminated against. In the case of a clear-cut discriminatory question or a question that makes you uncomfortable, you may see no other option but to walk out of the interview.

Whether or not you decide to bring up the illegal question with your potential employer or recruiter after the interview is up to you. If you do wish to take legal action, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC is a federal agency that enforces anti-discrimination laws in the workplace. They can investigate the complaint and may take action against the employer if they find that discrimination has occurred.

What you need to know about illegal interview questions

Illegal job interview questions can have serious consequences for employers in the form of fines and reputational damage. It’s important for both employers and candidates to be aware of what is and isn’t allowed during the hiring process, and for candidates to know how to handle illegal questions and the steps to take if they feel they’ve been discriminated against. Discrimination in the hiring process is unacceptable and, thanks to the plethora of laws enforced by the EEOC, it’s simply not allowed.

Employers have a responsibility to ensure that their hiring process is fair and non-discriminatory, and candidates have the right to speak up and take action if they feel they have been treated unfairly. Whether you choose to continue the interview or leave after being asked an illegal—and potentially discriminatory—question, it’s important to know these rights and be confident in your ability to identify illegal interview questions.

Photo: Welcome to the Jungle

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