Keep Interviews Legal – 6 Steps to Consider

How to Keep Interviews Legal: A Guide for Compliant Hiring Practices
We know from organizational culture assessment data that interviewing candidates isn’t just about finding the best fit — it’s also about avoiding a potential legal minefield. According to a Resume Builder survey of 1,000 hiring managers, 32% admitted they knowingly ask illegal questions.  Organizations must be able to conduct interviews that are effective without putting their company in legal jeopardy.

Interviewing missteps, even if unintentional, can expose your company to unwanted lawsuits, reputational harm, and costly settlements.

6 Steps to Keep Interviews Legal: A Guide for Compliant Hiring Practices
Based upon behavioral interview training best practices, here’s how to keep interviews on solid legal ground without sacrificing insight into a candidate’s potential and cultural fit.

1. Know the Law: Federal and State Regulations Matter
   The foundation of legal interviewing starts with understanding anti-discrimination laws. Federally, Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, or national origin. The Americans with Disabilities Act (ADA) bars discrimination based on disability, and the Age Discrimination in Employment Act (ADEA) protects applicants 40 and older.

   State and local jurisdictions may also impose additional rules such as restrictions about asking about salary history or criminal background. Keeping up with evolving state and federal laws is essential. A 2022 EEOC enforcement report found that failure to comply with fair hiring laws accounted for a significant portion of workplace discrimination claims (EEOC, 2023).

2. Train Interviewers on What Not to Ask
   We know from new manager training that one of the most common mistakes in interviews is asking prohibited or irrelevant questions. Questions about marital status, children, age, religion, or citizenship can open the door to discrimination claims — even if the intent was innocent.

   Avoid asking interview questions that are NOT job-related or that may be perceived as unfair to some people. Examples of questions to NOT ask include:

   — “Do you have kids?”
   — “What year did you graduate?”
   — “Are you a U.S. citizen?”
   — “What church do you attend?”

   Instead, focus on job-relevant criteria:

   — “Can you work the required schedule?”
   — “Are you legally authorized to work in the U.S.?”
   — “This job requires travel.  Can you meet that requirement?”

   Providing legal interviewer training where the questions are tied to key job success factors can reduce both legal risk and poor hiring decisions.

3. Stick to a Structured, Documented Process
   Unstructured interviews are not only less predictive of future performance, they’re also legally risky. They allow for unplanned banter, unconscious bias and inconsistency which courts can interpret as evidence of discrimination.

   Structured interviews and simulation assessments, on the other hand, ask all candidates the same set of questions based on job-related competencies. They’re easier to document and defend. A study by Schmidt & Hunter (1998) found that structured interviews are significantly more predictive of job success than unstructured ones, and their consistency adds a layer of legal protection.

   Documentation is also key. Keep records of:

   — The questions asked.
   — The answers provided.
   — The evaluation criteria.
   — The rationale behind hiring decisions.

   Should a problem occur, documentation can serve as evidence that the process was fair and based on merit.

4. Beware of Background Checks and Social Media
   Employers often use background checks or review social media profiles to gather candidate insights. But doing so improperly can cross legal lines. The Fair Credit Reporting Act (FCRA) requires employers to obtain written consent before conducting background checks through third parties. It also mandates that candidates be given an opportunity to dispute inaccurate findings.

   When it comes to social media, tread carefully. Using information related to race, sexual orientation, religion, or political views (regardless of intention) can fuel claims of bias. If your organization uses social screening, it’s best to have a neutral third party filter out protected class information.

5. Ensure ADA and EEO Compliance
   During the interview, employers may ask whether the candidate can perform the job’s essential functions with or without reasonable accommodation, but they cannot ask about disabilities, health conditions, or medical history.

   To support Equal Employment Opportunity (EEO), ensure all qualified candidates, regardless of background, have fair access to interview opportunities. This includes accommodating candidates with disabilities and avoiding practices that disproportionately exclude certain groups.

6. Involve Legal and HR Early
   Human Resources and legal counsel should be involved in crafting interview guides, scoring rubrics, and communication templates. This proactive involvement helps create a compliance-oriented culture where fairness, objectivity, and legal defensibility are baked into the process instead of being a reactive afterthought when an issues arises.

The Bottom Line
Hiring top talent is about building a high-performing workforce without creating unnecessary legal exposure. Position your interview teams to make smart, equitable hiring decisions by aligning interview practices with legal standards and ethical principles.  That is how you reduce legal risk, enhance the candidate experience, and strengthen your employee value proposition.

To learn more about how to hire top talent that fits, download Why the Interviewing Process is Flawed – And What to Do About It