Interview questions you cannot legally ask

The categories to avoid

1. Age or date of birth, including proxies like graduation year.
2. Race, ethnicity, national origin or first language.
3. Religion, including availability questions framed around religious observance.
4. Sex, gender identity or sexual orientation.
5. Pregnancy, children or family plans.
6. Disability, health, or medical history.
7. Marital or relationship status.
8. Criminal history, where restricted by ban-the-box rules.
9. Salary history, now prohibited in many jurisdictions.

Ask about the requirement instead

• Instead of “Do you have children?” — “This role needs occasional travel at short notice. Does that work for you?”
• Instead of “When did you graduate?” — “How many years have you worked in this area?”
• Instead of “Where are you from originally?” — “Are you legally able to work in this country?”
• Instead of “Do you have any health conditions?” — “Can you perform the essential functions of this role, with or without reasonable adjustments?”
• Instead of “What do you currently earn?” — “The range for this role is X to Y. Does that work for you?”

Why intent does not protect you

Interviewers often assume a friendly question is safe because no discrimination was meant. The legal test is not your intent but the effect: whether the question elicited protected information, and whether an adverse decision followed. A question asked warmly during small talk sits in the same record as one asked deliberately. This is why the reliable habit is structural — write the questions in advance and do not improvise during rapport-building, which is exactly where these questions slip out.

The small-talk problem

Most unlawful questions in real interviews are not asked in the assessment; they are asked in the first two minutes while putting the candidate at ease. “Any plans for the weekend?” is harmless. “Is your family local?” is not. If you want warm-up questions, prepare two that are about the candidate's work or the conversation itself — how their week has been, whether they found the building, what they have been working on.

If a candidate volunteers the information

Candidates sometimes mention a pregnancy, a disability or their nationality unprompted. You are not obliged to pretend it was not said, but you should not follow up on it, should not record it, and must not let it influence the decision. Redirect gently to the requirement: “Thanks for mentioning it — what matters for us is whether the start date works; does it?” If an adjustment is being requested, move that conversation to whoever handles accommodations rather than exploring it in an assessment.

Jurisdiction matters more than people expect

• Salary history bans apply in many US states and some other countries, with different scopes.
• Criminal-record questions are restricted or deferred to a later stage in many places.
• Age is more tightly protected in some jurisdictions than others, including proxies like graduation dates.
• Hiring across borders means the strictest applicable rule governs your script. Write one compliant set rather than several.

Make it a process problem, not a memory problem

Expecting interviewers to remember a list under conversational pressure is the weakest possible control. Put the approved questions in the scorecard itself, brief interviewers before each loop, and make clear that improvisation is for follow-ups about the work, not for new topics. See how to write an interview scorecard and how to reduce interview bias.

Train the panel, not just the recruiter

Recruiters are usually the best-trained people in the process on this, and they are rarely the ones who create the exposure. The risk sits with occasional interviewers — an engineer pulled into a loop twice a year who has had no briefing and is trying to be friendly. A two-minute reminder before each loop, naming the categories and the small-talk trap, prevents more problems than an annual training session, because it arrives at the moment of use.

What to do if it has already happened

• Do not record it in the scorecard. Write only what is relevant to the role.
• Tell whoever owns hiring compliance, rather than hoping it passes. Early disclosure is treated very differently from a pattern discovered later.
• Make sure the decision rests on documented, job-related evidence. This is the practical reason to keep evidence-based scorecards: they show what the decision was actually based on.
• Fix the script, not just the interviewer. If one person improvised into a protected area, the briefing is the gap.

This is general guidance, not legal advice

Employment law varies by country, state and sometimes city, and it changes. Treat the categories above as the shape of the problem and have your actual interview script reviewed by someone qualified in the jurisdictions you hire in.

Where Interviewer Mode fits

Disclosure: we make CoPilot Interview, which includes Interviewer Mode for the hiring side and a real-time assistant used by candidates. We have an interest in you using the first, and our view of the second is that interviews should be designed to measure something an assistant cannot fake. Weigh the advice below accordingly.

Frequently asked questions

What questions are illegal to ask in an interview?

Questions touching age, race, religion, sex or gender, pregnancy and family plans, disability or health, national origin, and marital status are unlawful or restricted in most jurisdictions. Salary history and criminal record questions are also prohibited or deferred in many places.

Can I ask a candidate if they have children?

No. If there is a genuine requirement behind the question, ask about the requirement instead: whether the schedule works, whether occasional short-notice travel is possible, whether they can meet the start date.

Is it illegal to ask about salary history?

It is prohibited in many US states and several other jurisdictions, and inadvisable elsewhere because it carries forward existing pay gaps. State your range and ask whether it works, which gets you the information you actually need.

What if a candidate volunteers protected information?

Do not follow up on it, do not record it, and do not let it affect the decision. Redirect to the job requirement. If they are requesting an adjustment, route that to whoever handles accommodations rather than discussing it in the assessment.

Does it matter if I did not mean anything by the question?

Intent is generally not the test. What matters is whether the question elicited protected information and whether an adverse decision followed. This is why writing questions in advance, and not improvising during small talk, is the practical protection.