Illegal Interview Questions: What Not to Ask During an Interview

Betsey L. Lund, Attorney at Law

Betsey L. Lund, Attorney at Law

An employment interview is an excellent opportunity to learn more about an applicant applying for a job. However, when conducting the interview, an employer needs to make sure that all of the questions pertain to the job duties and responsibilities of the position and not to the applicant’s membership in a “protected class.”

In Minnesota, it is illegal to refuse to hire a person because of their:

  • Race or ethnicity
  • Age
  • Sexual orientation
  • Disability
  • Religion
  • Marital/Family status
  • National origin
  • Genetic information

These are known as the “protected class.” An employer cannot ask questions that require the applicant to disclose, for example, whether he or she is married, has children, is Christian, is Native American, etc. If an applicant believes they were turned down for a job because of their membership in a protected class, they may allege they were discriminated against during the interview process. The applicant may point to questions asked during the interview regarding their marital status, age, or sexual orientation to try to prove discrimination occurred (“Are you married?” “When did you graduate from high school?” “How close are you to retirement?”). Often times, it does not matter whether the employer had the intent to discriminate against the applicant, but rather whether the facts show it is possible the applicant was not hired based on their membership in one of the protected classes.

Here are some tips for employers to use when interviewing applicants to minimize the likelihood of discrimination claims:

  1. Create a list of questions to ask all Having a list of questions drafted before the interview helps the hiring team to be prepared for the interview and to only ask questions related to the job duties and responsibilities at issue.
  2. Have more than one interviewer present with the applicant. It is helpful to have someone take notes of the applicant’s answers during the interview process. Accurate record keeping of the questions asked and answers given may also help refute any allegations that an illegal question was asked during the interview or justify the basis for not hiring the applicant.
  3. Consistency, consistency, consistency. By following a specific procedure for interviewing applicants and asking all applicants the same questions, the likelihood of discriminating – intentionally or unintentionally – against an applicant is reduced. If the employer followed the same procedure for all applicants and all applicants were asked the same standard set of questions, the applicants were treated similarly and it is likely no discrimination occurred.

Just like the applicant, the employer should spend time preparing for the interview and thinking about what questions to ask. A little preparation can go a long way in ensuring the employer in complying with Minnesota employment laws.

Betsey Lund is an Attorney with Lund Sauter, P.A.  She practices in the areas of business law, employment law, family law, and estate planning.  Contact Betsey Lund at (320) 259-4070.


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