During my years in Talent Acquisition, I have had several experiences where I sat cringing as I listened to a hiring manager ask an illegal question to a candidate. In the cases that I witnessed, there was neither malice nor ill intent, however it would be naive to assume that there are not instances out there where the hiring manager may not be so innocent.
What do you need to know as a job seeker? Read on to find out.
What is an illegal interview question?
Broadly speaking, an illegal interview question is a question that could potentially be discriminatory. More frequently, they relate to any question surrounding age, race, national origin, gender, marital/family status, religion, sexual orientation or handicap. Equally illegal, although less common, are questions related to personal finances, social or political affiliation, questions related to height/weight, substance abuse or arrests (note: inquiries about convictions are legal).
When do illegal questions pop up?
There seems to be a common misconception regarding how illegal interview questions present themselves: the interview is going along swimmingly then a sinister shadow crosses the interviewer’s face. “So…” followed by the illegal question. Pause. Heartbeats. Menacing violin music. The candidate, now the victim, sweats and realizes that they are trapped.
While the scene makes for a moderately interesting movie, I have never witnessed anything close to this in real life.
Illegal interview questions usually happen at the beginning or the end of the interview, during those rapport-building, chit chat times. For instance, the candidate will say “Yeah, I just came back from a trip in my country” and the hiring manager asks “Oh yeah, where’s that?” then the candidate answers. This is a completely normal and natural conversation in any other setting, however in an interview, the hiring manager has inadvertently crossed the line, and the candidate has unwittingly answered.
For someone like me who is constantly meeting new people, I have developed small talk that steers clear from any illegal topics. This was my job, however. Most people don’t meet new people as frequently and when they do, it’s generally in social or networking settings where there are no rules. When we consider it in this light, while it doesn’t make the line of questioning any less illegal, it removes the sinister motive. It’s our job in HR to point it out and offer coaching after the interview.
It may surprise you to know that it’s most often the candidate who volunteers the answers to the illegal questions.
The reality is that work and life intertwine. People fall in love and move. People change jobs to commute less and spend more time with their families. People get divorced, children are born and parents die. This is life.
What kept me engaged in HR for 10 years was this human element. There are few times outside of an interview when someone asks you to talk about a part of your life in a chronological fashion. Work history is not in a vacuum. Life blends in and candidates talk about it. It has happened many times that the candidate has volunteered their age, their marital/family status or their country of origin and there has been no consequence.
With that said, if you have an interview coming up, I would strongly recommend that you familiarize yourself with the illegal subjects listed above. Knowledge is power. By knowing which topics to steer clear from, it can help you to phrase your answers more carefully and avoid volunteering information that could potentially be discriminatory.
Trust your gut
The bottom line is that illegal interview questions are illegal for a reason. They could potentially lead to discrimination and to a candidate who loses out on an opportunity because of who they are.
While there is guidance on what constitutes an illegal question, there is no guidance on how to answer one because each individual circumstance is so particular. This is why I recommend that you trust your gut. The candidate is not doing anything illegal or unprofessional if they volunteer information or answer an illegal question. Is it the best thing to do, however? That’s up to you to decide given the context you are in.
You are under no obligation to answer an illegal question. There is a way to maneuver around the question and get the conversation back on track by addressing the root of the larger concern.
Let’s use a common example. The candidate has volunteered that they have two young children and the hiring manager is now concerned that family life will present an issue when it comes to overtime. The hiring manager asks: “With two young children, at what time will you have to leave to pick them up at daycare? Can you work overtime?” This is a touchy, illegal question. Refusing to answer will only heighten the hiring manager’s concerns but answering may put you in jeopardy. What do you do?
If you choose to answer the question, the best way to manage a situation such as this one is to fall back on your past experiences and use the SAR method. The hiring manager’s concern boils down to “Can I count on you?” How you care for your kids and who picks them up when is none of their business. Share a concrete example from your recent past when you were there in a clutch situation by stating what the situation was, the action you took and the result. This might also be an opportunity to flip the switch and find out how much overtime is involved in the job. This now puts the hiring manager in the position where they have to answer a question and it will steer you away from the personal and back to the professional.
Ultimately, you have to trust your gut based on the situation. There are employers out there who consciously or unconsciously discriminate. If you believe that you have been discriminated against based on one of the criteria mentioned above, you can report the employer with your provincial or state commission.