Illegal interview questions, and what to ask instead

In a US job interview, a question is unlawful when it targets a protected characteristic or leads to a hiring decision based on one: age, children, marital status, pregnancy, religion, national origin, disability or health before an offer, genetic information and family medical history. Federal law bans the discrimination, and the EEOC treats questions on these topics as evidence of it¹.

Strictly speaking, few questions are illegal in themselves under federal law. The ADA is the exception: it forbids disability-related questions and medical exams before a job offer³. For the rest, Title VII, the ADEA and GINA forbid basing a hiring decision on a protected ground, and asking about it is what a plaintiff's lawyer points to first. The practical rule is the same either way: don't ask. This guide lists the questions recruiters get wrong most often and gives a lawful rewording for each.

Which laws apply

Sources: 42 U.S.C. § 2000e and § 2000e-2², 42 U.S.C. § 12112³, 29 U.S.C. §§ 630 and 631⁵, 42 U.S.C. § 2000ff-1⁶. The Supreme Court held in Bostock v. Clayton County (2020) that firing someone for being gay or transgender is sex discrimination under Title VII⁷. State and city laws often go further and apply to smaller employers.

The questions to drop, and what to ask instead

Each lawful version below describes the real requirement of the job and can be asked of every candidate.

Schedule and availability

You may state the actual schedule and ask whether the candidate can meet it. The EEOC says an employer may state its attendance requirements and ask whether the applicant can meet them⁸. What you do not ask is who looks after the children or which days the candidate worships.

Physical requirements and health

Describe the task, then ask whether the candidate can perform it, with or without reasonable accommodation. Before an offer, the ADA bars questions about disabilities, medication, sick days taken or workers' compensation history³⁴. If a candidate discloses a hidden disability on their own, you may ask whether they need an accommodation and what kind, not about the condition.

Citizenship and language

The EEOC says most employers should not ask whether an applicant is a US citizen before making an offer, and federal law forbids starting the Form I-9 and E-Verify process before the candidate has accepted one. An employer may state on the application that every new hire must verify identity and eligibility to work upon hire⁹. A language requirement is fine when the job needs it; then test the skill, as in the Spanish example above, rather than asking where the accent comes from.

Salary history and criminal records depend on the state

Salary history. No federal law bans the question for private employers, but many states and cities do. California (Labor Code § 432.3) and New York (Labor Law § 194-a) forbid seeking an applicant's salary history, including through an agent¹⁰¹¹. Asking about pay expectations remains allowed: "The range for this role is $32 to $40 an hour. What are your pay expectations?"

Criminal records. Federal law does not ban the question for private employers, but the EEOC says an employer may not refuse to hire someone simply because of an arrest, and blanket conviction screens can discriminate by race or national origin¹². California's Fair Chance Act (5 or more employees) and New York City's (4 or more) push conviction-history questions until after a conditional job offer¹³¹⁴.

The real trap: what the candidate volunteers

Most unlawful questions are not asked out of hostility. They follow something the candidate said: a mention of a daughter's school, a medical appointment, a church choir. The friendly follow-up ("How old is she?") turns a disclosure into a record that the recruiter took an interest in a protected characteristic.

The safe reaction is short: acknowledge it, do not write it down, return to the job's requirements. If the disclosure raises a real constraint, restate the requirement neutrally and ask every candidate the same question.

What it can cost

Under Title VII and the ADA, a rejected candidate can recover back pay plus compensatory and punitive damages, capped per person by employer size: $50,000 for 15 to 100 employees, $100,000 for 101 to 200, $200,000 for 201 to 500 and $300,000 above 500 (42 U.S.C. § 1981a(b)(3))¹⁵. A charge generally has to be filed with the EEOC within 180 days, or 300 days where a state or local agency enforces a similar law¹⁶. State law can add its own remedies.

Training interviewers

No federal law requires recruiter training on non-discrimination. In Hiring without discrimination, recruiters run six-question interviews with an AI-simulated candidate who volunteers personal details, while a coach flags each question as compliant, at risk or off limits, names the law and suggests a better wording. It is unofficial, online awareness training: the completion record shows the course was completed, not that any legal obligation is met.

See the course

FAQ

Is it illegal to ask a candidate's age?

Federal law does not ban the question itself, but the ADEA protects applicants aged 40 and over, and an age question is strong evidence if a hiring decision is challenged. You may ask whether the candidate meets a legal minimum age for the job.

Can I ask if a candidate has children?

No. It is not a job requirement, and the EEOC treats such questions as possible evidence of sex discrimination. State the schedule and ask whether the candidate can meet it.

Can I ask about a candidate's health?

Not before a job offer. The ADA bars disability-related questions and medical exams at that stage. You may describe a job task and ask whether the candidate can perform it, with or without reasonable accommodation.

Can I ask about salary history?

It depends on the state or city. California, New York and many other jurisdictions ban it. Asking about pay expectations is allowed everywhere.

Does federal law require interviewer training?

No. Title VII, the ADA, the ADEA and GINA ban discrimination in hiring but do not require recruiter training.