Discrimination Questions Employers Are Not Allowed to Ask

The interview questions employers are not allowed to ask fall into a narrower legal category than most job seekers assume. With one significant exception, federal law does not flatly ban specific questions. Instead, questions that probe your race, religion, national origin, sex, pregnancy, age, family status, or genetic history become evidence of discrimination if the employer then decides not to hire you. The exception is disability: the Americans with Disabilities Act prohibits disability-related questions and medical exams outright before a conditional job offer. Knowing the difference tells you what to watch for, how to respond, and what you can do if a problem question costs you the job.

What “Not Allowed” Actually Means

The EEOC has stated that federal and state equal opportunity laws “do not clearly forbid employers from making pre-employment inquiries” that relate to protected characteristics, but that “such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.”¹ In practical terms, an employer who asks about your religion and then rejects you has handed you a piece of evidence for a discrimination charge. That is why trained HR staff avoid these questions in the first place.

The federal framework rests on four statutes. Title VII of the Civil Rights Act of 1964 covers race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), and national origin, and applies to employers with 15 or more employees.² The Age Discrimination in Employment Act protects applicants and employees 40 and older and applies to employers with 20 or more employees.³ The ADA prohibits disability-related pre-offer questions and medical exams and applies to employers with 15 or more employees.⁴ The Genetic Information Nondiscrimination Act (GINA) makes it unlawful for employers to request, require, or purchase genetic information about an applicant, including family medical history.⁵

Those employee thresholds matter. At a company with fewer than 15 employees, Title VII and the ADA do not apply at the federal level. State or local laws often protect you where federal law does not, and many jurisdictions set lower thresholds or cover additional protected classes.

The Question Categories to Watch For

Race, National Origin, and Ethnicity

Questions about your birthplace, ancestry, the origin of your name, or your native language are improper unless fluency in a specific language is genuinely required for the role. The EEOC’s position is that employers “should not request information that discloses or tends to disclose an applicant’s race unless it has a legitimate business need for such information.”⁶ Demographic data collected for affirmative action tracking is supposed to be kept separate from the application materials used in hiring decisions.

Religion

Questions about your denomination, what holidays you observe, whether you attend services, or whether your faith would prevent you from working certain days all fall into this category. An employer can ask whether you are available for a specific required schedule. They cannot ask why you might not be.

Sex, Pregnancy, and Family Status

Interviewers sometimes ask about marital status, plans to have children, childcare arrangements, or whether a pregnancy might affect availability. The EEOC treats inquiries about pregnancy status or plans to start a family as evidence of pregnancy discrimination when followed by an unfavorable hiring decision.⁷ The questions often reflect assumptions about a woman’s commitment or reliability, which is the kind of stereotyping the law targets.

Age

Federal law does not outright prohibit an employer from asking your age. The EEOC warns, however, that “because such questions may discourage older workers from applying for jobs or may otherwise indicate a possible intent to discriminate based on age, employers should ensure that they ask about age only for a lawful purpose.”⁸ Indirect versions are just as problematic. Asking your high school graduation year or the date you got your first driver’s license accomplishes the same thing without asking directly, and investigators know it. Asking whether you are at least 18 is fine because it relates to legal working age.

Genetic and Family Medical History

Under GINA, employers cannot ask you to provide genetic information, and that includes questions about diseases or conditions in your family. Employers must even instruct their own health care providers not to ask about family medical history during any post-offer medical examinations.⁵

Disability and Medical Questions: The Hard Prohibition

The ADA is different. Rather than treating problem questions as evidence, it flatly bars disability-related questions and medical examinations before a conditional job offer. An employer cannot ask about your general health, past medical history, workers’ compensation claims, sick leave usage, or specific disabilities at the pre-offer stage, even if the employer plans to look at answers only after making an offer.⁴

The rules shift after a conditional offer. At that point employers can ask disability-related questions and require medical examinations, and those inquiries do not have to be job-related. Every person entering the same job category must face the same questions or exams, results stay confidential, and if the employer withdraws the offer based on a disability, they must show the reason is job-related, consistent with business necessity, and that no reasonable accommodation would resolve the concern.⁴ Once employment begins, a third standard applies: disability-related inquiries must be job-related and consistent with business necessity.⁹

Criminal History and Salary History

Criminal history questions are not banned outright under federal law, but the EEOC has issued guidance explaining how blanket criminal exclusions can violate Title VII through disparate impact. An arrest alone does not establish criminal conduct, and an exclusion based solely on an arrest record is not considered job-related or consistent with business necessity. Convictions carry more weight, but employers are expected to consider the nature of the offense, the time that has passed, and the nature of the job rather than applying automatic disqualifications.¹⁰ Many states and cities have also enacted “ban the box” laws that prohibit asking about criminal history on an initial application.

Salary history is a state-level issue. No federal law broadly prohibits salary history questions, but roughly 22 states and about two dozen cities have enacted their own bans. Those laws typically prevent employers from asking what you currently earn or have earned in past positions, and some also prohibit using volunteered salary information to set pay. Whether you are covered depends entirely on where you live and work.

What Employers Can Legally Ask

Legal questions focus on whether you can do the job. Employers can describe the physical or scheduling demands of a position and ask whether you can meet them with or without reasonable accommodation.⁴ The framing is critical. “Can you lift 50 pounds regularly?” is fine. “Do you have a bad back?” is not.

Employers can ask whether you are available for required night or weekend shifts without asking the reason for any conflict. They can ask whether you are at least 18. They can inquire about skills, certifications, education, and work experience relevant to the position.

Work authorization is tighter than many applicants expect. The EEOC advises that most employers “should not ask whether or not a job applicant is a United States citizen before making an offer of employment.” Federal law also prohibits employers from running I-9 verification and E-Verify before you have accepted an offer. Employers can inform you during the application process that all hires will need to verify identity and work eligibility after being hired, but they should not be probing citizenship status in the interview.¹¹

How to Respond in the Moment

Getting one of these questions in a live interview is uncomfortable, and there is no single right answer. You have a few practical options.

The most common move is to redirect. Address the concern behind the question without revealing protected information. If someone asks about your childcare situation, you can say something like, “I’m fully available for the schedule this position requires.” You have answered the underlying worry about attendance without disclosing anything about your family.

You can also decline. A polite “I don’t think that’s relevant to the position, but I’d be happy to talk more about my qualifications for the role” keeps the interview on track. Most interviewers who ask problem questions are untrained rather than malicious, and a redirect usually works.

Some applicants answer anyway, either because they do not think it will hurt them or because they want to move past an awkward moment. That is a personal call. You are not legally obligated to answer, and answering does not waive your right to file a complaint later if you are not hired. Whatever you choose, steer the conversation back to your qualifications as quickly as you can.

Documenting What Happened

Write down the details as soon as you leave the interview. Memory fades fast, and specifics matter if you later file a complaint. Record the exact question as close to verbatim as you can, who asked it, the date, time, and location of the interview, and the names of anyone else present. In a panel interview, note which panelist asked.

Write down what happened next too. Were you called back? Did you receive a rejection, and how was it communicated? A discriminatory question by itself does not prove you were discriminated against. It becomes powerful evidence when paired with an adverse hiring decision, and organized records are what turn a complaint into one that moves.

Filing a Complaint With the EEOC

If discriminatory questioning led to an unfavorable hiring decision, the federal enforcement agency is the Equal Employment Opportunity Commission.¹² You start by filing a Charge of Discrimination, which you can do online through the EEOC Public Portal. The portal walks you through screening questions, collects the details, and lets you review and sign the charge electronically.¹³

The deadline is strict: 180 calendar days from the date of the alleged discrimination, extending to 300 calendar days if a state or local agency enforces a law prohibiting employment discrimination on the same basis.¹⁴ Many states and localities operate Fair Employment Practices Agencies (FEPAs). If you file with a FEPA, the charge is automatically dual-filed with the EEOC when federal law applies, so you do not need to file with both separately.¹⁵

After the EEOC investigation closes, the agency issues a Notice of Right to Sue. You can also request that notice earlier if you want to head to court before the investigation finishes. Once you receive it, you have 90 days to file a lawsuit, and missing that deadline can permanently bar your case.¹⁶

Retaliation Protection

Federal law prohibits employers from punishing you for asserting your rights under anti-discrimination laws, and that protection extends to job applicants, not just current employees. Filing a charge, participating in an investigation, or communicating with a manager about perceived discrimination all count as protected activity. An employer cannot take any action in response that would discourage a reasonable person from resisting or reporting discrimination.¹⁷ The protection is not a shield against legitimate, non-discriminatory decisions. It means an employer cannot punish you specifically because you raised a discrimination concern.

1
U.S. Equal Employment Opportunity Commission. Prohibited Employment Policies/Practices
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U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964
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U.S. Equal Employment Opportunity Commission. Age Discrimination
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U.S. Equal Employment Opportunity Commission. Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations
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U.S. Equal Employment Opportunity Commission. What You Should Know: Questions and Answers About the Genetic Information Nondiscrimination Act
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U.S. Equal Employment Opportunity Commission. Pre-Employment Inquiries and Race
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U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Pregnancy Discrimination and Related Issues
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U.S. Equal Employment Opportunity Commission. Age Discrimination – FAQs
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U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA
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U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act
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U.S. Equal Employment Opportunity Commission. Pre-Employment Inquiries and Citizenship
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U.S. Equal Employment Opportunity Commission. About the U.S. Equal Employment Opportunity Commission
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U.S. Equal Employment Opportunity Commission. How to File a Charge of Employment Discrimination
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U.S. Equal Employment Opportunity Commission. Time Limits For Filing A Charge
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U.S. Equal Employment Opportunity Commission. Filing A Charge of Discrimination
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U.S. Equal Employment Opportunity Commission. Filing a Lawsuit
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U.S. Equal Employment Opportunity Commission. Retaliation