Are Your Hiring Managers Asking Illegal Questions? New Data Says Probably.

In today’s complex hiring environment, a single inappropriate question can derail an interview, damage your employer brand, and even open your company up to litigation. Unfortunately, a recent SHRM report reveals that sensitive and often illegal interview topics are still alarmingly common.

Despite decades of compliance training, many candidates are still facing questions that cross legal and ethical lines. This disconnect notes a critical risk for employers, especially as the workforce becomes more diverse and candidate expectations for professionalism and inclusion grow.

The Risky Questions Still Being Asked

The SHRM research highlights that managers are still frequently inquiring about topics protected by law. These sensitive subjects include:

Disability and Medical History: Asking about a candidate’s physical or mental health, past workers’ compensation claims, or disabilities (both visible and non-visible) remains a common misstep.
Age: Questions that try to pinpoint a candidate’s age, such as asking for a graduation year, are still surfacing.
Family and Marital Status: Inquiries about marital status, plans to have children, or childcare arrangements are not only outdated but illegal.
Race, Ethnicity, and National Origin: Any question about a candidate’s race, ethnic background, or birthplace is a major legal red flag.
Religion: A candidate’s religious beliefs, practices, or affiliations are not relevant to their ability to perform a job and should never be a topic of discussion.
Salary History: While the legality varies by state, salary history bans are widespread. Asking what a candidate used to make, rather than what their expectations are, can perpetuate pay inequity and is illegal in many jurisdictions.

So, Why Is This Still Happening?

A few key reasons for this persistent problem:

Untrained Interviewers: Often, hiring managers are promoted for their technical skills, not their interviewing prowess. Without formal, recurring training, they may not realize what’s off-limits.
Unconscious Bias: Interviewers may unconsciously drift toward topics that help them “relate” to a candidate, often leading to personal questions about family or background.
“Small Talk” Gone Wrong: An innocent attempt to build rapport (“Where did you grow up?” “Do you have kids?”) can easily cross into illegal territory.

The Cost of Getting It Wrong

The impact of these questions is twofold. First, you risk losing top talent. Modern candidates, particularly from younger generations, have a low tolerance for unprofessional or discriminatory questioning. They are more likely to withdraw from the hiring process, share their negative experience online, and view your company as outdated or non-inclusive.

Second, you face significant legal risk. A single ill-advised question can be the centerpiece of a discrimination lawsuit, costing your company time, money, and reputational damage.

Best Practices for a Compliant Interview Process

A strong best practice for reducing risk is to use scripted, job-related interview questions tied directly to the essential functions and competencies of the role. Structured interviews not only promote fairness and consistency, but they also significantly reduce the likelihood of illegal or biased questioning.

Equally important is preparing managers for moments when a candidate volunteers sensitive information (such as medical conditions, family status, or religious practices). In these situations, interviewers should be trained to:

Avoid asking follow-up questions that dive deeper into protected topics
Redirect the conversation back to job-related qualifications
Document only information relevant to the role
Notify HR if accommodation or compliance considerations are triggered

The clear takeaway for all employers is the urgent need for better training. Don’t assume your managers know the rules. Regular, practical training on legal interview practices, unconscious bias, and rapport-building within legal boundaries is no longer optional—it’s essential for protecting your organization.

If your team is interested in learning about the nuances that ensure a compliant interview process, contact us here.