What to Do If You Are Asked an Illegal Question

The interview is going along smoothly. You are 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. Do you need a special car to drive?"

On the surface these questions may seem innocent enough. And most of the time, they are truly asked in innocence. Yet the structure, format, and/or context of the question may be illegal. So what do you do? How do you respond?

First of all, it is important to understand the difference between an illegal question and a potentially criminally or civilly 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 requires establishing a motive or intent. Most illegal questions are asked in ignorance, not with malicious intent. Yet there can still be civil recourse, even when there was no criminal motive or intent.

In our politically correct society, we often cry foul at the slightest deviation from the accepted standard. 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 which questions are proper, ignorance of how the information could be used by others in a discriminatory way.

Ironically, many illegal questions are asked when an untrained interviewer is trying to be friendly by showing an interest in you personally 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 corporate 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 otherwise been a high level of interest in you as a potential employee.

So what is the proper response? The answer is up to you, but a 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 to 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 blatantly discriminatory—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 which employers should avoid. Following is a brief list of some of the types of questions that employers should not be asking:

  • Questions related to birthplace, nationality, ancestry, or descent of applicant, applicant's spouse, or parents.
    Example: "Pasquale—is that a Spanish name?"
  • Questions related to applicant's 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: "Do your religious beliefs 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?"

Some employers may attempt to make a reasonable accommodation for employees in certain circumstances, which is typically allowable. So a question such as: "Do you require any accommodations in order to effectively perform your work?" is generally a legal question, even though it may appear to be discriminatory.

It should be noted that just because an illegal question has been asked does not necessarily mean a crime has been committed. Should you decide to pursue a legal course of action, it is up to a court of law to determine whether the information was used in a discriminatory manner.