How to Handle Illegal Questions at the Job Interview
Katherine Perry | October 2000
"Do you own your own home? What did your father do for a living? Do you drink alcohol and how often? Do you have a boyfriend?" Joyce Lain Kennedy expected to be asked about her career experience, not her personal life, at a job interview. But these questions were all asked of Kennedy, now at the Milwaukee Journal Sentinel, during job interviews in the last few years. "One interviewer even asked me how old I am-and even I know that’s illegal!" Kennedy writes.1
After sending out resumes, and anxiously waiting for a response, an employer-or, if you’re lucky, more than one employer-has called you in for an interview. You’ve made it this far. Instead of worrying what you will say, what do you do when the interviewer asks you an inappropriate question-even an illegal question? And perhaps more importantly, how do you respond without ruining your chance of receiving the job-that is, if you still want the job?
Various federal, state, and local laws regulate the questions that a prospective employer may ask you. In Minnesota, for example, the Minnesota Human Rights Act, at Minnesota Statutes, section 363.03, subdivision 1(4)(a), provides it is an "illegal, discriminatory employment practice for an employer, before a job applicant is hired, to require or request the person to furnish information that pertains to the following: race, religion, national origin, public assistance, sex, color, marital status, sexual orientation, age, creed, or disability." 2 This prohibition includes pre-employment information sought on a job application form, during an interview or a health history/physical exam, and from third-party sources such as a prior employer. New York State’s "Recommendations on Employment Inquiries" includes recommended and not recommended questions for employers, determined by "a rule of reason, taking into account the need for the information asked as well as the danger that it will reveal other information that should not be considered in selection."3
For more information on your own state’s laws, and on specific recommended versus illegal questions during an employment interview, contact your state’s Department of Human Rights or your local Job Service office.
On the federal level, the Equal Employment Opportunity Commission (EEOC) enforces laws prohibiting job discrimination, and also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. For example, under Title VII of the Civil Rights Act of 1964 (Title VII), Title I of the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA), it is illegal to discriminate in any aspect of employment, including hiring, job advertisements, recruitment, and testing. Discriminatory practices under these laws also include employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.4
Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC. It is important to distinguish, however, between an illegal question and a criminally-liable question. An interviewer who states a question in an illegal form has not necessarily committed a crime. According to Brian Krueger, author of College Grad Job Hunter, "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."
Questions-on the job application, during the interview or testing process-must be job-related. Even though legislation helps to ensure an interviewee is not asked an illegal or discriminatory question, occasionally these questions do come up. While Human Resources personnel are probably knowledgeable about what is or is not legal, others on interview committees-particularly when there are multiple individuals from various departments involved-may not be as aware.
Most of the time, such illegal questions may truly be asked in innocence, or in ignorance-of the law, of what questions are proper, of how the information could be used in a discriminatory way. Interviewers may be untrained and new to the interview process, and may even be trying to appear friendly. Keep in mind that, especially in an academic setting, this may be the first time your interviewer has been involved with a search committee which is conducting interviews. Illegal or improper questions may not be indicative of an organizational- or institutional-wide philosophy; one individual’s questions do not necessarily imply a collective mentality of discrimination. At the same time, Linda Laufer, a career consultant in Manhattan, points out that illegal questions may be a shock tactic designed to test a candidate’s composure.5
Options for Responding to Illegal Interview Questions
Whatever the reason behind an illegal question, candidates should know how to handle a situation that could be potentially embarrassing, damaging, or, worse yet, criminal. Interviewees should know the basics to protect their rights. When determining your response to illegal questions, a good guideline to follow should be, "Is it or isn’t it job-related?"
Answer the question. If it doesn’t bother you, some career experts say, go ahead and respond. Realize, though, that you are giving information that is not job-related. According to "Handling Illegal Questions" by Rochelle Kaplan, General Counsel for the National Association of Colleges and Employers, you could harm your candidacy by giving the "wrong" answer.6 Perhaps the best approach here is to answer the question in brief and move on.
Refuse to answer the question. This approach-while within your rights-runs the risk of you coming off as challenging the interviewer. Krueger adds that
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.
It’s also hard to recover from an awkward response such as "none of your business." Remember that your goal-at least initially, before you decide about accepting a position-is to impress your prospective employer.
Another alternative here is to ignore the question altogether and redirect the discussion toward a new topic. In a best-case scenario, according to Krueger, the interviewer may even "recognize the personal misstep and appreciate your willingness to put it aside and go on."
If the question is blatantly offensive, you do, of course, have the right to end the interview and leave.
Try to determine the intent behind the question as it relates to the job. Diplomatically work your way around the illegal question, finding a way not to offend the interviewer, which is harder than it may sound. For example, if the interviewer asks, "Who is going to take care of your children when you have to travel for the job?" you might respond with, "I can meet the travel requirements of the job." Again, make sure your restatement is directly related to the job and the duties it entails.
A benefit to this reframing approach is that it allows you time after the interview-away from the "hot seat"-to decide whether to continue to seek a position with that employer.
Whatever your response decision may be, career experts agree that it’s best to think about possible illegal questions ahead of time, and decide how you will handle them. The key is to prepare suitable responses before you’re sitting across the desk from a prospective employer so you can actually relax-if it all possible during an interview!-and engage in conversation once there. In the end, there is no perfect answer.
Kennedy, Joyce Lain. "Job Applicant Sometimes Needs to Tell Interviewer to ‘Back Off.’" Milwaukee Journal Sentinel, July 2, 2000, p. 01Z.
Available at http://www.humanrights.state.mn.us.
"Recommendations on Employment Inquiries." New York State Division of Human Rights.
Available at http://www.eeoc.gov.
- Laufer, Linda E. "Achieving Success in Your Interviews." New York Law Journal, January 21, 2000, p. 24.
- Kaplan, Rochelle. "Handling Illegal Questions." Available at http://www.jobweb.org.