Job interviews are a nerve-wracking experience. And while we’re all prepared to answer, “What’s your biggest weakness?” or “Tell me about a time you made a mistake at work,” most of us aren’t expecting to hear, “Are you planning to become pregnant?” or “Where do you go to church?” or, “What country were your parents born in?” Such incredibly personal questions are often jarring and possible deal-breakers for some applicants. Many people think it’s illegal to be asked these kinds of questions, but in most cases it’s not against the law to ask — it’s just illegal to use that information as the deciding factor in whether or not to hire someone. So the next time you’re hunting for a job, here’s what you need to know about what your next boss can and can’t ask you — and what you can do about it if things get weird.
Why are these questions so bad?
In a perfect universe, all of what’s discussed in a job interview would be small talk that doesn’t matter, doesn’t pry too much and doesn’t cross any personal lines. In the real world, workplace discrimination is still a pernicious problem.
Sometimes employers genuinely and unfairly want to weed out candidates who don’t fit their perceived model (like engineering firms that have been accused of automatically discounting female applicants), but sometimes they simply don’t realize their own biases, like maybe finding someone from their own religion “more trustworthy.”
And if a company chooses to not hire someone — or gives preferential treatment to an applicant — because of their answers to some of these incredibly personal questions, it’ not just rude to the qualified applicants who missed out on the job, it’s potentially super-duper illegal.
What does the law say?
This is where the problem starts. There is no one specific law declaring that “You can’t ask questions about XYZ.” Instead, there is a a patchwork of laws and regulations enacted over time and are enforced on a federal level by the Equal Employment Opportunity Commission.
The EEOC oversees employment discrimination claims, including hiring discrimination, against protected classes.
What is a protected class?
Good question, Timmy. Individuals have legal protection against discrimination along certain categorical lines; the groups inside those lines are protected classes. At the federal level, they are race, color, religion, sex, national origin, age, disability, and genetic information.
Most of those categories are exactly what they sound like. Sex discrimination includes pregnancy discrimination, age discrimination applies to workers over age 40, and “genetic information” discrimination means a company can’t decline to hire you if, for example, you carry the so-called “breast cancer gene” and might cost them extra in medical benefits someday.
Although there is no federal law protecting LGBT employees from discrimination, the EEOC has held that discriminating against a transgender person on the basis of their gender identity qualifies as sex discrimination, as can discrimination against a lesbian, gay, or bisexual person in some circumstances.
Twenty states provide some protection for employees who identify as lesbian, gay, or bisexual; seventeen have non-discrimination laws protecting employees based on gender identity. In Tennessee, someone can refuse to hire a gay employee. In Colorado, they can’t.
However, as of just a few weeks ago, no business that has a contract with the federal government is permitted to discriminate against LGBT employees and candidates — and that includes religious organizations with federal contracts.
So it’s illegal for an employer to ask about those things in an interview?
Not even a little bit illegal at all.
With a very few specific exceptions (more about those in a moment), there are no “illegal” interview questions. It is completely, totally, 100% legal for a potential employer to ask you about your status in any protected class except for disability.
So yes, an employer can ask you if you’re married, if you have children, if you plan to have children, if you’re gay, what country you or your parents were born in, and what religion you practice — and countless other personal things that have nothing to do with the job or your possible performance in that job.
However, using any of that information as part of the hiring process is completely illegal. Hiring managers are not permitted, under the law, to decline to hire you because of your status as a member of a protected class.
Because they’re not permitted to use that information to make decisions about your candidacy, most sensible employers will avoid asking in the first place. That way, if they don’t hire you, they have a reasonable defense against accusations of many different kinds of discrimination.
So about those specific exceptions…
Certain businesses are too small to be covered by EEOC rules. If you’re the third or fourth employee a small business has ever hired, you are completely out of luck on discrimination protection.
The other key exception is disability. Under the law, an employer is prohibited from asking job applicants if they have a disability.
They also may not ask about the nature of an “obvious” disability. For example, if a candidate comes in with a hearing aid, a guide dog, or a wheelchair, discussing the nature of that disability is a no-no. (Of course, many disabilities are invisible or hidden from sight.)
However, employers may ask job applicants if they are able to perform the job and how they would perform the job, but the nature of the disability is out of bounds.
For example, if a wheelchair-using candidate interviews for a job as a delivery driver, the employer can ask, “Are you able to drive a van and take packages from the vehicle to clients’ doorsteps?” but the employer may not specifically ask about the applicant’s disability.
What do I do if I don’t feel comfortable answering really personal questions?
Probing, seemingly irrelevant questions might not be illegal, but that doesn’t mean you’ll feel comfortable telling some interviewer personal details about your marriage, kids, religion, or sex life. So what do you do when you think a question crosses the line?
For expert advice, we asked Alison Green of Ask A Manager, who says that the way to handle the situation first depends on exactly what the situation is.
“It’s so tricky, because on the one hand you really don’t want to take an adversarial approach,” she explains. “That’s the fastest way to destroy any rapport you’ve already built up with the interviewer.”
And of course, if you’re at an interview for a job you want, you’re trying to build up a positive relationship and hopefully end up with a great new gig.
First, try not to get thrown off. Keep your cool. Then, Green suggests, tailor your approach to the feeling you’re getting from the asker. Ask yourself whether the question is something you wouldn’t normally discuss, or if it’s only jarring because it’s unexpected from a job interview.
“Are they making conversation, being warm? Then treat it as you would at any other social occasion,” Green advises. Kids and pets are nearly as common to talk about as the weather, after all.
But what if it’s not just small talk?
“If you get the sense that they’re grilling you, that the answers really matter,” Green says you can take a couple of different tactics.
“Try to figure out what it is they’re really getting at,” she suggests. You can even ask them that question directly; in a friendly, conversational, non-adversarial tone try answering their question with one of your own: a casual, “Oh, why do you ask?”
Or, says Green, you can sometimes see clearly what the employer is really concerned about and tackle that head-on instead.
For example, if you believe you’re being asked about future pregnancy plans because they want to know how you’ll handle child-care arrangements, and how it will reflect your availability and reliability, you can skip to answering those concerns instead of getting mired in the personal details of your family planning.
Sometimes it still doesn’t work.
When your efforts to rein in the personal questions don’t succeed, the best you can do in answer politely or deflect gracefully. Unfortunately, if the interviewer gets challenging or hostile about your answers, then the interview is probably not going to end well.
Of course, you’ll have to ask yourself if you would be comfortable working for a company that insists on answers to these probing questions.
What if I believe I’ve been discriminated against because of my answers?
Most of the time, interviewers who ask dumb questions are making thoughtless small talk without thinking through the implications. But sometimes, hiring managers and companies really are big discriminatory jerks.
If an employer has discriminated against you due to your status as a member of a protected class, you can file a charge of discrimination with the EEOC.
In some situations, you may also wish to consult an employment lawyer, who can help you understand your particular options better.
Green suggests that employees and job-seekers looking for a reputable employment lawyer should head to the National Employment Lawyers Association (NELA) website, where they have a searchable directory of lawyers who specifically represent workers and employees in employment law cases.