Illegal interview questions: what not to ask, and what to ask instead

Illegal interview questions are questions about a candidate's protected characteristics, such as age, disability, religion, pregnancy, national origin or genetic information, that have nothing to do with whether they can do the job. Under US federal law only a few are banned outright: disability and medical questions before a job offer, and requests for genetic information. Most of the others are not banned by name, but asking them creates evidence of discrimination if the candidate is rejected, so the working rule is simple: if the answer should not affect your decision, do not ask. Several states, including New York and California, go further and prohibit the inquiry itself.

Below: how federal law treats each category, a table of risky questions with lawful alternatives, what states and cities add, what to do when a question slips out, and how agency recruiters should answer a client who asks for screening on a protected trait. For planning the interview around these rules, see the first-time hiring manager interview guide.

Banned outright or just risky: how federal law treats each category

The EEOC's page on prohibited employment policies and practices says information requested during hiring should be limited to what is essential for deciding whether a person is qualified, and that information about race, sex, national origin, age and religion is irrelevant to that decision. The laws behind that advice treat questions differently:

Coverage thresholds come from the EEOC's small business requirements page. Two practical points follow from the table. First, a question asked as small talk is still a question: "not banned by name" does not mean safe to ask. Second, the ADA rules cover more than "do you have a disability". The EEOC's pre-offer guidance also rules out asking about workers' compensation history or how many days an applicant was sick, because both relate directly to the severity of an impairment.

Illegal interview questions and lawful alternatives

The right-hand column only applies when the topic is a real requirement of the job and you ask every candidate for the role the same way. Where it says "nothing", there is no job-related version.

All wording is illustrative. The work authorization pair follows the Justice Department's FAQ, which also says it is a best practice to avoid asking applicants about citizenship or immigration status at all. The EEOC's citizenship page suggests telling every applicant instead that all persons hired will be required to verify identity and eligibility to work.

Why the same question can be fine or unlawful

"Can you work weekends?" is an ordinary screening question. It becomes evidence of discrimination when it is asked only of the candidate wearing a religious head covering, or only of mothers, or when the job has no weekend work. Whether a question holds up usually depends on four things:

1. It is asked of every candidate for the role. The EEOC's gender page flags any inquiry asked of one sex but not the other.
2. It starts from a stated requirement. Say the requirement first, then ask whether they can meet it. Never ask for the reason behind the answer.
3. The requirement is real. A lifting requirement no one in the role actually meets, or "fluent English" for a job that does not use it, is the problem, not the wording.
4. The answer is used only for that requirement. "Cannot travel" is a travel answer. It is not a reason to rate their commitment lower.

Copy this block for the logistics part of any screen and use it word for word with every candidate:

LOGISTICS: same wording for every candidate for [role]

Schedule   "The role works [days and hours], including [weekends /
            nights / on-call]. Can you work that schedule?"
Travel     "It involves [amount] of travel, usually [overnight / day
            trips]. Can you meet that?"
Location   "The role is [on-site at / hybrid from] [place], [days per
            week]. Does that work?"
Physical   "The job requires [specific task, e.g. lifting 50 lb, standing
            for an 8-hour shift]. Can you do that, with or without
            reasonable accommodation?"
Licenses   "The role requires [license or certification]. Do you hold
            it, and is it current?"
Work auth  "Are you legally authorized to work in the United States?"
           "Will you now or in the future require sponsorship for an
            employment visa?"
Pay        "The range is [$X–$Y]. What are you looking for?"
Process    "If you need an accommodation for any part of our interview
            process, tell me and we'll arrange it."

Written questions are the simplest protection, because most illegal questions come out of improvised conversation. Interview Signal builds a question guide from the job description and ticks off the must-ask questions as they are covered, which keeps the interview on the questions you wrote down.

What states and cities add

State and local laws often protect more characteristics, cover smaller employers, and ban the question itself rather than only the decision. Three examples, checked against the linked pages:

Pay history and criminal history are the two areas where state and city rules change most often, and each has its own page: salary expectation questions and ban-the-box interview questions. Other states add their own categories. Check your state's fair employment agency for the list where the job is located.

When a question slips out

It happens, usually in the first five minutes of friendly conversation. How you handle the next minute matters more than the question.

1. Stop and take it back. "Sorry, that's not something I should have asked, and you don't need to answer it. Let me get back to the role."
2. Do not ask a follow-up, even to show interest in what they said. A second question turns a slip into a line of questioning.
3. Do not write the answer down. Leave it out of your notes, scorecard and any submittal. What not to write in interview notes covers the rest.
4. Score only on job-related evidence, and mark any competency you did not cover as not assessed.
5. Tell your recruiter or HR the same day. They can decide whether anything else should happen, such as another interviewer reviewing the scores. Telling them early is far better than it coming up in a complaint.
6. Do not edit or delete records later to hide it, and never once a complaint or legal hold exists.

If the candidate raises a protected topic themselves, the same rules apply from step 2 onward: acknowledge briefly, do not follow up, do not record it.

Agency recruiters: when the client asks for it

Staffing and search firms get these requests in intake calls, often phrased casually. Title VII applies to employment agencies directly: 42 U.S.C. § 2000e-2(b) makes it unlawful for an agency to refuse to refer, or to classify or refer, anyone because of race, color, religion, sex or national origin. The EEOC's guidance on staffing firms says the client's requirement is no defense, and gives the example of a firm that agrees to refer only white nurses at a client's request as violating Title VII.

Write the job-related version into the intake notes and confirm it back to the client by email. If a client insists on the original request, stop the search and escalate to your manager or counsel. The intake meeting questions page covers turning vague preferences into requirements you can screen for.

Checklist before every interview

• Questions are written down and the same for every candidate for this role.
• Every logistics question starts from a real, stated requirement of the job.
• Work authorization uses the two standard questions, nothing about citizenship or visa type.
• Nothing about age, graduation years, family, pregnancy, health, sick days, workers' compensation, religion, origin, accent, height, weight or finances.
• No questions about arrests or convictions in the interview itself.
• Pay questions ask expectations, never history.
• Small talk sticks to the role, the commute or the weather.
• The process accommodation line is in the invitation, and requests go to whoever handles them.
• You know the extra rules for the state and city where the job is.
• If something slips out: stop, no follow-up, no note, tell HR the same day.