Your Guide to Legal Interviewing

Checklist of Permissible Interview Questions

When you are adding a new member to your team, it is common that the conversation moves to a more informal note. Since you may be working with this person for awhile, it is only natural that you want to know them as a person. However, you should always be weary of possibly discriminatory questions because they not only lead to discrimination claims but also create a negative and uncomfortable environment for your possible employees. As such, here is a helpful list of permissible and impermissible questions that will aid you in interviewing.

Topic: Permissible Inquiries Impermissible Inquiries
Address or Residence “Can we reach you at this address? If not, would you like to leave another?” “Who do you live with?” or “Do you live with your spouse?”
“Can you be reached at these telephone numbers? If not, would you like to leave another?” “Do you own your home? Do you rent?”
Age Only questions that verify non-minor status for example: “How old are you?”
“Are you over 18?” “What is your date of birth?”
“If hired, can you show proof of your age?” “When were you born?”
“If under 18, can you after employment submit a work permit?” “When did you [attend or complete] elementary school?” … “high school?”
Questions that imply a preference for an individual under 40 years old.
AIDS/HIV “Are you able to perform the essential functions of the job applied for either with or without a reasonable accommodation? Yes or No?” Questions likely to elicit information regarding whether an applicant/employee has AIDS/ HIV.
Arrests and Convictions “Have you ever been convicted of a criminal offense? Do not include convictions that were sealed, eradicated or expunged, or convictions that resulted in referral to a diversion program.” Questions regarding an arrest that did not result in a conviction.
(Note: Convictions will not necessarily disqualify you from employment. Factors such as the age and time of the offense, the seriousness and nature of the violation, and rehabilitation will be considered when making any employment decisions). Questions regarding sealed, eradicated or expunged criminal records.
Employers should check state and local law with respect to restrictions on criminal history inquiries.
Citizenship or Birthplace “Are you authorized to work in the U.S.? If hired, you will be required to submit verification of your legal right to work in the United States.” “Are you a United States citizen?”
However, it is important that this be asked of all applicants, not only persons appearing to the interviewer to speak a primary language other than English or to be foreign-born. “Where were you born?”
Questions regarding birthplace or citizenship status of the applicant or the applicant’s spouse, parents or other relatives are also impermissible.
Color or Race Statement that photograph may be required after employment is permissible. Questions concerning race, color of skin, color of eyes, hair, etc.
Additionally, the applicant should not be required, or given an option, to attach a photograph to his or her application.
Court Records (see above for Arrests and Convictions) “Has a court, jury or government agency ever made a finding you committed unlawful harassment or discrimination?” “Have you ever filed for bankruptcy?”
“Have you ever sued or filed claims or complaints against your employer?”
“Have you ever been a plaintiff in a lawsuit?”
Physical or Mental Disability “Can you, with or without reasonable accommodation, perform the essential duties of the job(s) for which you are applying (see attached job description)?” “Do you have any physical disabilities or handicaps?”
“Are you currently able to perform the essential duties of the job(s) for which you are applying?” Inquiries regarding the applicant’s general medical condition, state of health, or illnesses.
If the disability is obvious, or disclosed, it is permissible to ask about accommodations. “Are you disabled?”
It is also permissible to make a statement that the offer may be contingent on the applicant’s passing a job related physical examination An employer MAY NOT make any medical inquiry or conduct any medical examination prior to making a conditional offer of employment.
“Have you ever filed for or received workers’ compensation?”
Inquiries regarding what medical problems the applicant may have.
Inquiries regarding the amount of sick time or medical leave taken at last job.
Inquiries that may reveal an applicant’s family medical history or other genetic information.
Drug Use Current use of illegal drugs. Questions about past addictions.
Recent use of illegal drugs. Questions about use of prescription drugs or frequency of alcohol use.
Education “Are you presently enrolled or do you intend to enroll in school?” “Who paid for your educational expenses while you were in school?”
“What subjects did you excel in at school?” “Did you go to school on a scholarship?”
“Did you participate in extracurricular activities?” “Do you still owe on student loans taken out during school?”
“What did you select as your major?” “When did you graduate from high school?”
“Did you work an outside job while attending school? Doing what? What did you like/ dislike about your part-time job during school?”
“Are you interested in continuing your education? Why? When? Where?”
“Did your education prepare you for the job you are seeking with us? In what ways?”
Experience, Skills and Activities “Do you have any special skills or knowledge?” “Does your physical condition make you less skilled?”
“Are your skills recent?”
“When did you last use a computer [or any other specific program, machine or skill]?”
“Do you enjoy being active in community affairs?”
“Are there any activities which have provided you with experience, training, or skills which you feel would be helpful to a position with us?”
“How will your involvement in [activity] affect your work here?”
Family “Do you have any commitments that would prevent you from working regular hours?” “How many children do you have?”
“Can you work overtime, if needed?” “Who takes care of your children while you are working?”
“Are you now or do you expect to be engaged in any other business or employment? If ‘yes,’ what kind of business or employment is it? How much time does it require?” “Do your children go to day care?”
“What does your husband (or wife) think about your working outside the home?”
“What is your husband’s (or wife’s) salary?”
“Is your spouse the same gender as you?”
Inquiries regarding the name of the applicant’s spouse or children.
Marital Status “Please state the name(s) of any relatives already employed by this company or a competitor.” “Is it Mrs. or Miss?”
“Whom should we contact in case of an emergency?” “Are you single? Married? Divorced? Separated? Engaged? Widowed?”
“Do you have a domestic partner?”
“What is your maiden name?”
Inquiries regarding the identity of applicant’s spouse.
Military Service “Have you served in the U.S. military?” “Have you served in the army of a foreign country?”
“Did your military service and training provide you with skills you could put to use in this job?” “What type of discharge did you receive from the U.S. military service?”
“Can you provide discharge papers?”
Name “Have you ever used another name?” or, “Is any additional information relative to change of name, use of an assumed name, or nickname necessary to enable a check on your work and educational record? If yes, please explain.” “What is your maiden name?”
National Origin In order to comply with the Federal Immigration Reform and Control Act of 1986, it is permissible to ask: “What is your national origin?”
“Are you prevented from being employed in the United States because of your visa or immigration status?” “Where were you born?”
“What is the origin of your name?”
“What is your native language?”
“What country do your ancestors come from?”
“Do you read, write, or speak a particular foreign language? (unless based on job requirements)
How applicant acquired the ability to read, write or speak a foreign language.
Any questions as to nationality, lineage, ancestry, national origin, descent or parentage of applicant, applicant’s parents or spouse.
Notice in Case of Emergency Name and address of person to be notified in case of accident or emergency. Name and address of relative to be notified in case of accident or emergency.
Organizations It is permissible to inquire about any organization memberships, excluding any organization of which the name or character indicates the race, color, creed, sex, marital status, religion, national origin, or ancestry of its members. The interviewer cannot ask for a list of all organizations, clubs, societies, and lodges to which the applicant belongs.
“Do you enjoy being active in community affairs?”
Photographs It is permissible to ask for a photograph after hiring for identification purposes. The interviewer cannot ask any applicant to submit a photograph– whether mandatory or optional–before hiring.
Pregnancy “How long do you plan to stay on the job?” “Are you pregnant?”
“Are you currently able to perform the essential duties of the job(s) for which you are applying?” “When was your most recent pregnancy terminated?”
“Do you plan to become pregnant?”
Any questions about medical history concerning pregnancy and related matters.
Prior Employment “How did you overcome problems you faced there?” “How many sick days did you take at your old job?”
“Which problems frustrated you the most?” “Did you file any claims against your former employer?”
“Of the jobs indicated on your application, which did you enjoy the most, and why?” “Have you sustained any work related injury?”
“What were your reasons for leaving your last job?”
“Have you ever been discharged from any position? If so, for what reason?”
“Can you meet the attendance requirements of the job?”
References “By whom were you referred for a position here?” Questions asked of the applicant’s former employers or acquaintances that the employer would be prohibited from asking the applicant directly (e.g., questions that elicit information specifying the applicant’s race, color, religion, national origin, disability, age or sex).
Also, inquiry regarding names of persons willing to provide professional and/or character references for the applicant is permissible.
Religion or Creed Statement by employer of regular days, hours or shifts to be worked. “What is your religion?”
“Are you available to work on weekends?” (is permissible if there is a legitimate business reason for this question) “What church do you go to?”
“What are your religious holidays?”
“Does your religion prevent you from working weekends or holidays?”
Sexual Orientation “Are you a gay/lesbian/bisexual?”
“Do you have a domestic partner?”
“What is your view regarding same-sex partner benefits?”