is that interview question legal?

by Alison Green on January 10, 2011

You’re sitting in a job interview and suddenly your interviewer asks you:

“So, do you have children?”
“What church do you go to?”
“What an unusual last name. Is it Japanese?”

You probably know that interviewers aren’t supposed to ask these sorts of questions – but what do you do one when does anyway?

First, let’s get the law out of the way. There’s a widespread belief that these questions are downright illegal, which isn’t quite right. In most states, the act of asking these sorts of questions isn’t illegal in and of itself. Rather, what is illegal is rejecting you based on your answers to them, because it’s illegal for an employer to make a hiring decision based on your marital status, race, religion, gender, pregnancy or likelihood of getting pregnant, whether or not you have children, or other legally protected classes.

(One exception to this when it comes to questions about disabilities. Employers aren’t allowed to ask about disabilities at all, although they are allowed to ask if you can perform the essential functions of the position with or without reasonable accommodation.)

But regardless of the technicalities of the law, smart interviewers — or interviewers who have ever spoken to a lawyer — don’t ask these types of questions. The answers shouldn’t be relevant to your ability to do the job, and they can’t consider them anyway. Plus, since so many people think that the questions themselves are illegal, it’s a good way to make a candidate really uncomfortable.

But not every interviewer is a good interviewer. So what do you do if you’re asked one of these questions in an interview?

Well, you could launch into a spiel about employment law, but doing that probably isn’t going to endear you to the interviewer. Here are two other options you can try:

1. Figure out what the question is getting at, and answer that instead. For instance, if you think an interviewer is concerned that you’ll leave the job when your spouse gets transferred, speak directly to that: “I can commit to the job for at least several years.” If you think the interviewer is concerned that parenthood will get in the way of your job performance, say something like, “There’s nothing that would interfere with my ability to work the hours needed and get the job done.”

2. Turn the question back around, by pleasantly saying something like, “That’s a different question. I’ve never been asked that before in an interview. Why do you ask?” In this situation, the interviewer is likely to either let it drop and move on, or explain why she asked (which opens the door for you to more easily use strategy #1).

It’s also worth noting that most of the time when an interviewer asks one of these questions, it’s not because they’re trying to screen you out on illegal grounds, but rather because they’re trying to be friendly and don’t realize that they’re on risky ground. It’s certainly your prerogative to make an issue out of it, but on a practical level, you need to decide if it’s a battle you feel like fighting or not. If the interviewer merely intended to be friendly, you may not want to throw cold water on that.

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{ 22 comments }

{ 22 comments… read them below }

  1. Melissa*

    Thank you so much for this! I am asked at every single interview, “Is your husband military”. I understand why they ask because what they really want to know is how soon are we moving away. (And I would rather the interviewer simply ask me, “How long do you expect to be in the area” rather than asking about what my husband does for a living). It’s nice to know that they are allowed to ask the question, although they are not allowed to reject me based on my answer. Luckily, I have been hired in every state we’ve spent time in for the past 18 years. However, one interviewer in Louisiana actually did ask “What religion are you”. I was so stunned I sat there with a blank face until he moved on. I got the job.

  2. Elaine*

    When I was young (about a hundred years ago), interviewers would automatically ask young women if they were planning to get married in the next few years, or if they were married, if they were planning to have children. They explained that they didn’t want to train people who were going to leave within a few years.

    And we accepted that.

    Until Mary Richards told Mr. Grant that he can’t pay her less than the male Associate Producer just because the man had a family, since they didn’t pay a man with 4 children more than they paid a man with 3 children. HAH!

    1. Anonymous*

      Oh, the discrimination’s still there… most employers just know they have to be quiet about it now.

      Consider my husband’s workplace: all white men except for one white woman (the receptionist). They throw out resumes with “black names” or “Mexican names” or “Jew names”, and they don’t consider any long resumes from women (long work history = old = not eye candy for entertaining the men in the office, and probably has kids and will demand annoying accommodations around them).

      But they never say they do this, or write down that they do this. So no one will ever be able to prove that they do it, which makes it all as good as legal.

      (Not that my husband exactly enjoys this work environment, for the record! But it beats the heck out of the 9 months of post-layoff unemployment that came before it…)

    2. Anonymous*

      Legality aside, what’s ethically wrong with trying to avoid hiring someone that will leave within a few years?

      1. Elsie*

        There are two things wrong:
        1. Any employee of any gender could be leaving in a few years for any number of reasons
        2. These questions are applied disproportionately to women. Not every woman gets married (hell, not every woman is straight, so you can’t assume a woman will necessarily marry a man), not all women can or want to have kids, and women won’t necessarily leave their jobs just because they decide to have children.

        The way you phrase the question makes it sound rational and egalitarian, but the way it’s applied in practice is absolutely not that way.

        Additionally, this is an issue in the current economy. Many people are over qualified, because of education or experience, for the jobs they are applying for. Many employers don’t even want to interview those people because they think they will leave when something better comes along. But again, an employer can’t do that. Some will leave, some won’t. And in the meantime, the employer might overlook someone who could have been a great employee.

        1. Anonymous*

          Anon 6:33 here.

          1. Yes, “any employee of any gender could be leaving in a few years for any number of reasons.” But women are more likely. All other things being equal, would you not want to hire person A over person B if person A were more likely to stay long term?

          2. Yes, “these questions are applied disproportionately to women”, because things like getting married and having children are more likely to affect women’s careers than men’s.

          1. Ask a Manager* Post author

            Except that there are many, many women for whom that’s not the case. And many men for whom it is. It doesn’t make sense to draw conclusions based on characteristics like gender or race; individuals vary significantly.

            What you’re saying is really an argument for asking the sorts of questions that the law discourages (what are your plans for marriage/kids, etc.), but it’s not an argument for just favoring men over women as candidates, or for asking different types of questions based on gender.

          2. Elsie*

            And all things being equal, I’d prefer to not be discriminated against because of my sex, which is something I had no control over.

            Besides, these days, so many women are single mothers, that many can’t afford to stop working just because they had a kid.

            The point of this type of discrimination being illegal is that it tries to mitigate certain inequalities in society (that women are expected to be the primary caregiver for their children).

        2. KellyK*

          Exactly. It’s also worth adding that men may leave a job for family reasons or request flexible scheduling, part-time, etc.

          *And* women tend to take pay cuts or penalties if they request those things, or get put on the “mommy track” purely by virtue of having kids. So, ethically, there’s something wrong with penalizing women once just for having (at least in theory) uteruses, again for using them, and then *again* for changing their work schedule or commitments to deal with family requirements.

          1. Chris Walker*

            The average length of service in a job in the US is barely 4 years anyway, though it has ticked up a bit recently (not surprising). So the honest answer to the question ‘Where do you see yourself in 5 years?’ is ‘If you hire me, I won’t be here anymore.’

            One of our clients (male 52) recently was asked in an interview about his marital status, kids and some other off limits topics. The business owner, a 70ish non-American born gentleman, told me he was just trying to get to know the candidate!

  3. Anonymous*

    At my last job, the manager candidate had a group interview with some of the department employees. One of them asked her if she was married, and did she wear high heels like that every day! She was hired, and turned out to be one of the best managers I worked for.

    After that, the department director sent out a memo clarifying what questions could not be asked in an interview. Companies shouldn’t assume that people who sit in on interviews know what to ask and what not to ask.

  4. Anonymous*

    I’ve been asked about how I can perform my job with my age and appearance not exactly matching. Being in my mid-twenties, I look about 5 years younger, but I was asked this in my young twenties so you can imagine how younger I looked then.

    But I was dressed professionally and carried myself as such, and the interviewers still had to point that out. It did cross my mind if that was illegal.

    1. Ask a Manager* Post author

      The interesting thing about age discrimination laws (at least in most states) is that they don’t kick in until you’re 40. So you actually CAN legally discriminate against someone for being, say, 19. Just not 40 or over.

      1. Mr. Mead*

        And worse – they legally have to discriminate if you are under the age of 18. They call it “working papers”.

        1. Anonymous*

          Aren’t they doing that to protect the minor? That was my understanding of it when I went to work in a store and had to get those working papers. But in my case, I was definitely older than 18, even though I looked like I could pass for an 18 year old, but the interviewer obviously couldn’t see past that even though we discussed other work-related items in the interview.

  5. Anonymous*

    I was advised to tell the exact truth of why I left my last job. I took “early retirement.” So I was asked, “So how come you’re not retiring?” I told them that it was a euphemism for downsizing and I had no intention of retiring for 15-20 years. It must have been the right answer.

    But what if they hadn’t hired me? Or they’d asked about my church or my kids and then turned me down? I might guess that the reason was discrimination but I’d never know for sure and couldn’t prove anything.

  6. anonarealius*

    I was actually asked if I had children, was married and why I was looking to change jobs all in the same breath by an attorney.

    I answered maybe, sort of and no longer sure followed with a snort and ‘Talk about thin ice. Now guess which questions I answered accurately’. Although we lol and had a brief bonding moment, in hindsight, that ‘kodak moment’ held the keys of their culture and behavior.

    I got the job and quit less than a year later. I now know that those that play out of bounds on the interview will see what else they can pull, taxing you at every opportunity.

  7. Alex W.*

    I am Chinese and married my English husband and took his name. I also have a unisex first name. When I went for the interview, I could sense that some of the hiring panel was surprised I was a Chinese woman and not a white man. My resume was impressive, but they were expecting a white man to have that experience and meet the qualifications. They asked me if I was adopted. The hiring manager said, “I’m just curious because I’m adopted.” I responded, “I don’t see how that relates to this job.” They weren’t very happy that I responded that way, and I didn’t get the job. Although, I will never know if my gender and ethnicity had anything to do with it. Oh well, they lost out. I would’ve been the best web administrator they never had.

  8. Anonymous*

    I’ve had it all asked to me- and it drives me crazy. I’m in my mid-20s and have advanced quickly; so people speak to me on the phone or via email, and see my resume, and if they don’t do the math from my date of graduation they assume I’m far older. I also look about 12, and even in a suit, I’ve often had the initial double take upon first meeting me; my current boss did that, after interviewing and hiring me over the phone (the job was overseas), and meeting me in person for the first time!

    As for the rest. . . I work overseas as I mentioned, in the GCC, and here it’s really common to ask all sorts of innappropriate questions. My first day at my last job, I get called into the Chairman’s office where he asks me not only am I married, but upon hearing I’m not if I intended to be, and then what my father did and how he felt about me being so far away. I was also warned to keep my private life very very private, as getting a reputation for hanging around with men, drinking etc as a single girl could get me in trouble (it’s a muslim country so the rules are pretty strict, but still!). My personal fav however was when I was leaving that job, and interviewing for my replacement. I was instructed that he would prefer to hire a single girl with no family- anyone who’d want to bring a spouse or children under his sponsorship was nixed. When I presented my chosen shortlist candidates to the Chairman, the first thing he asked was ‘what colour is her skin’.

  9. Tara T.*

    I had a strange experience in one interview. The interviewer said some overtime is required. I told him I live nearby and am almost always available for overtime. Then he saw on my resume that I live in an apt, and he said, “You live in an apartment. Are you from this area? Where does your family live? Are you moving?” Why would I move after living in my apt for many years, liking my apartment, and why would he ask that if I just told him I live nearby and am therefore usually available for overtime? That is not even logical. I guess some people assume living in an apartment must be a temporary arrangement and most people move into a house, and then are suspicious of candidates who do not own a house. It was strange to say the least. I wondered if the last person in the job left to move to another state and maybe that was why he was asking, but he would not tell me why the last person left. He said, “We are not allowed to tell why any employees left.”

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