• Employers should avoid questions that are discriminatory or have nothing to do with a candidate’s ability to perform a job.

There are some questions that are never okay to ask before making a job offer (and in some cases, even after). These questions include:

• Marital status,
• Religion,
• Nationality,
• Union membership,
• Political affiliations,
• Salary history,
• If the candidate has ever filed a workers’ compensation claim or a lawsuit, and
• If the candidate has children.

These questions have nothing to do with the candidate’s ability to perform the job. Additionally, employers should avoid illegal questions that could elicit information that cannot be used in a hiring decision, such as gender, age, and race. In addition, many states and cities prohibit asking job candidate about their salary history.

Unless there is a legitimate business necessity, the following questions should be avoided:

• Are you married? What is your maiden name? Do you wish to be addressed as Mrs., Ms., or Miss?
  • However, employers may ask if the applicant has ever worked under a different name for the purposes of reference checking.
• Do you have children, plan to have children, or are pregnant?
• How old are you? What year did you graduate?
  • However, employers may ask if applicants have diplomas or degrees, and if they are 18 years or older.
• What is your nationality, race, or religion?
• Have your wages ever been garnished? Have you ever declared bankruptcy?
• Do you own your own home? How long have you lived at this address?
  • Because some marginalized people may be less likely to own their own home, this has been cited as discriminatory.
• What type of discharge did you receive from the military?
• Do you have a disability?
  • Employers can ask if the applicant can perform the essential job functions and meet attendance requirements with or without reasonable accommodation.
• How often do you drink alcoholic beverages or take illegal drugs?
• Have you ever filed a workers’ compensation claim or lawsuit against an employer?
• Have you ever been a member of a union?
• What clubs, societies, and lodges do you belong to?
  • Employers should ask only about organizations that applicants consider relevant to their ability to perform the job.

While most of these questions are not specifically prohibited by law, they are generally avoided because they do not reveal information that employers require to evaluate job qualifications, and the information could be used for discriminatory purposes.

For example, questions about children might lead to gender discrimination claims if applicants allege employment was denied based on the presumption that they would require more leave for child care. Asking for age itself is not a violation, but the question may indicate an intent to discriminate. Employers cannot retaliate against individuals for engaging in activities that they have a legal right to do, such as filing a workers’ compensation claim, joining a union, or joining other organizations that the company might disapprove of (such as religious societies), and therefore might show an intent to discriminate by asking.

While these questions are not unlawful on their own, an applicant or enforcement agency might assume that the company had a discriminatory reason for requesting the information if there wasn’t a legitimate need for it. If candidates volunteer information that is not supposed to be asked about or used in the hiring decision, interviewers should simply:

• Tell them the information isn’t relative to the job and won’t be used in the hiring decision, and
• Get the interview back on track.

Employers should be wary of offering promises. It is not unheard of for a supervisor to tell candidates, “If you work out, you’ll be promoted in a year or two.” If they take the job based on that promise of advancement and it doesn’t happen, they could sue for breach of an oral contract, and could very well win.