“What am I not allowed to ask in an interview?” The short answer is anything about the person that is not about the job. The EEOC puts the rule in one sentence: the information gathered before hiring “should be limited to those essential for determining if a person is qualified for the job.” Everything below is that sentence applied to the questions contractors actually ask, with a better question to ask instead.
What federal law protects, and who it covers
Under the laws the EEOC enforces, it is illegal to discriminate against an applicant or employee because of “race, color, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” Which of those laws reach your business depends on its size:
| Law or rule | Covers employers with |
|---|---|
| Equal Pay Act (equal pay for substantially equal work) | Virtually all employers |
| Title VII, the ADA and GINA (race, color, religion, sex, national origin, disability, genetic information) | 15 or more employees for at least twenty calendar weeks |
| Age Discrimination in Employment Act (40 and older) | 20 or more employees for at least twenty calendar weeks |
| Immigration law’s anti-discrimination rule (citizenship status), enforced by the Justice Department | 4 or more employees |
The Justice Department’s immigrant and employee rights section also handles national origin claims against employers with four to 14 workers, below the EEOC’s line. And the EEOC reminds small businesses that “state and/or local employment discrimination laws may also apply to your business.” So do not count heads to decide which questions are safe. The questions below are poor ones at any size, because none of them tells you whether someone can hang a gutter or run a service call.
The questions that create risk
Age
“How old are you?” “What year were you born?” The age law does not flatly ban asking, but the EEOC says such questions “may deter older workers from applying” and that “requests for age information will be closely scrutinized” to make sure the purpose was lawful. Its small-business advice is to avoid questions about age “unless used to verify that applicants meet any age-related legal requirements for the job.” For a crew job, that often means one question, “Are you 18 or older?”, because the Fair Labor Standards Act sets an 18-year minimum age for the occupations the Secretary of Labor declares “particularly hazardous” for 16- and 17-year-olds; summer help under 18 covers those limits.
Family
The EEOC lists family questions that “may be regarded as evidence of intent to discriminate” before hiring: whether the applicant is pregnant, marital status or marriage plans, the “number and age of children or future child bearing plans,” child care arrangements, whether the spouse works and the spouse’s name. It calls asking them of women only “clearly discriminatory” and says even asking everyone “may be seen as evidence of intent to discriminate.” What you are usually after is whether the person can work your hours, so ask that. Family details you truly need, for insurance for example, can be asked “after an employment offer has been made and accepted.”
Origin, race and religion
“Where are you from?” “What language do you speak at home?” “Which church do you attend?” The EEOC uses the last two as examples of questions to avoid. It says questions about religious affiliation or beliefs are “generally viewed as non job-related and problematic under federal law,” and tells employers to avoid asking about place of worship, days of worship and religious holidays. If your concern is the work week, state the schedule and ask whether the person can work it.
Citizenship
Do not ask “Are you a citizen?” and do not write “U.S. citizens only” in an ad. The Justice Department says employers “are not allowed to limit job applicants or hires to U.S. citizens unless they are required to do so by federal, state, or local laws or federal contracts that require specific positions to be filled only by U.S. citizens,” and it protects U.S. citizens, recent permanent residents, temporary residents, asylees and refugees from citizenship status discrimination. Its FAQ gives the two questions it treats as generally acceptable: whether the applicant has “the legal right to work in the United States” and whether the applicant “will need sponsorship for an employment visa.” The documents themselves belong to the Form I-9 in your hiring paperwork; hiring your first employee walks through it.
Injuries, health and comp claims
The work is physical, so the worry is a fair one, and the rules here are the most detailed. The ADA says a covered employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability,” but “may make preemployment inquiries into the ability of an applicant to perform job-related functions” (42 U.S.C. §12112(d)(2)). The EEOC’s guidance draws the line in detail. Before an offer:
Height and weight sit nearby. The EEOC says such requirements can “disproportionately limit the employment opportunities of some protected groups” and, unless you can show how the need relates to the job, “may be viewed as illegal under federal law.” Ask about the task, not the body.
Arrests and convictions
Criminal history is its own subject. Background checks on new hires covers it, so it is left out here.
Better questions for the same worries
Each risky question above hides a fair business worry. Ask about the worry directly and you get a more useful answer. The jobs in the right-hand column are examples; put in your own.
| Instead of | Ask |
|---|---|
| “Have you ever hurt your back?” | “This job means carrying 60-pound loads up a ladder several times a day. Can you do that, with or without an accommodation?” |
| “Ever filed a comp claim?” | “Show me how you would set up this extension ladder on the slope out back.” |
| “Do you have kids at home?” | “We start at 7 and some days run to 6, and we work some Saturdays in the busy season. Can you work that schedule?” |
| “How many sick days did you take last year?” | “How many days were you absent from your last job?” |
| “How old are you?” | “Are you 18 or older?” (only where an age rule applies to the work) |
| “Where are you from?” or “Are you a citizen?” | “Are you legally authorized to work in the United States?” and “Will you need sponsorship for an employment visa?” |
| “How tall are you?” | “Part of this job is working in crawl spaces and attics. Can you do that?” |
Questions that tell you who can do the work
Staying inside the rules is half of it. The other half is asking things that actually predict how someone will work. A few that tend to get real answers instead of rehearsed ones:
- “Walk me through the last job you worked on, start to finish.” Listen for what they did themselves and what they watched.
- “Tell me about a job that went wrong. What did you do?” You want someone who noticed, said something and helped fix it.
- “What would you do if the homeowner asked you to change something the plan doesn’t show?” The right answer sends the request to you, not into the job unbilled.
- “Which tools do you own, and which have you run?” Then hand them one and ask them to describe or show how they would use it on a task you name.
- “We need you here at 7 every day, with a valid license if you drive the truck. Any reason that won’t work?” State the requirement; let them answer it.
Ask every candidate for the same job the same questions, in the same order, and write the answers down while they are fresh. It makes candidates easier to compare, and it gives you a record of what you asked and why you chose.
After the offer
Some questions are fine once you have made an offer. The ADA allows a medical examination after an offer and before the person starts, and lets you make the offer conditional on its results, as long as the conditions of §12112(d)(3) are met; the EEOC’s guidance says all entering employees in the same job category must be given it, “regardless of disability.” Family details needed for insurance can be collected once the offer has been made and accepted. Drug testing is its own subject; drug testing crews where cannabis is legal covers it. If you have not written the ad yet, writing a help-wanted ad that tradespeople answer covers what to put in it.
General information, not legal or tax advice. Rules change and vary by state; check with the agency named above or a professional for your situation.