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How to Handle Illegal Interview Questions

The interview is going along smoothly. You're psyched that "this may be the one." And then it happens. Out of nowhere. "Are you considering having children?" Or, "How long has your family been in this country?" Or, "Your people place a high value on that, don't they?" Or, "You've done amazingly well for someone in a wheelchair."

On the surface they seem innocent enough. And most of the time, they are truly asked in innocence. Yet the structure and format of the question may be entirely illegal. So you've just been hit with an illegal question. What do you do? How do you respond?

First of all, it's important to understand the difference between an illegal question and a criminally-liable question. Even though a question or comment may have been stated in an illegal form, it does not necessarily mean that a crime has been committed. There is a difference between criminal liability and civil liability. For there to be criminal liability, it typically requires establishing a motive or intent. And most illegal questions are asked in ignorance, not intending malice. Yet there can still be civil recourse, even when there was no criminal motive or intent.

In our politically correct society, we are often ready to cry "foul" at the slightest deviation from the accepted norm. But the reality is that most illegal interview questions are asked in true innocence. Or, better stated, in true ignorance. Ignorance of the law, ignorance of what questions are proper, ignorance of how the information could be used by others in a discriminatory way.

Ironically, most illegal questions are asked when the untrained interviewer is trying to be more friendly and asks a seemingly innocent question about your personal life or family background. Therefore, any attempt by the candidate to "assert their constitutional rights" will merely throw up the defense shields and put an end to mutual consideration. Warning lights go on, sirens sound, and the interviewer begins backing down from what may have been an otherwise very encouraging position.

So what is the proper response? The answer is up to you, but my recommendation is to follow one of two courses of action: answer in brief and move on to a new topic area, or ignore the question altogether and redirect the discussion toward a new topic area. The interviewer may even recognize the personal misstep and appreciate your willingness to put it aside and go on.

Unless the question is blatant--and yes, blatant discrimination does still take place--your best option is to move on to other things. But if it is blatant and offensive, you have every right to terminate the interview and walk out.

While laws vary from state to state, there are some definite taboo areas with regard to interview questions that employers should be avoiding. Following are some of the basic subject areas and questions that if asked during the course of the interview, might be viewed as illegal questions being asked with the intention to discriminate:

  • Questions related to location of birthplace, nationality,  ancestry, or descent of applicant, applicant's spouse, or  parents.
    (Example: Pasquale--Is that a Spanish name?)
  • Questions related to your sex or marital status.
    (Example: Is that your maiden name?)
  • Questions related to race or color.
    (Example: Are you considered to be part of a minority  group?)
  • Questions related to religion or religious days observed.
    (Example: Does your religion prevent you from working  weekends or holidays?)
  • Questions related to physical disabilities or handicaps.
    (Example: Do you have any use of your legs at all?)
  • Questions related to health or medical history.
    (Example: Do you have any pre-existing health  conditions?)
  • Questions related to pregnancy, birth control, and child  care.
    (Example: Are you planning on having children?)

It should be noted that just because an illegal question has been asked does not necessarily mean a crime has been committed. Just because the question has asked does not establish intent. It is up to a court of law to determine whether the question or any resulting information was used in a discriminatory manner.