Ask What the Job Requires, Not What the Person Is

Which questions are actually illegal?

Almost none by name. Title VII, the ADEA and the ADA do not publish a list of forbidden sentences. All three make it unlawful to use a protected characteristic in the decision, and for a practice that screens people out Title VII's touchstone is business necessity, with any test required to measure "the person for the job and not the person in the abstract" ¹. The ADA writes job-relatedness and business necessity into the statute itself ².

Griggs is a 1971 case about a diploma requirement and two aptitude tests at one power plant. Its burden-shifting framework was narrowed by Wards Cove in 1989 and restored and modified by the Civil Rights Act of 1991, so read Griggs for the principle and that Act for the operative burdens. The ADEA runs on a separate track: the Supreme Court held in 2008 that the business necessity test has no place in ADEA disparate-impact cases, where the employer's defense is a reasonable factor other than age ⁷.

The ADA is the exception that behaves like a list. Under 42 U.S.C. 12112(d)(2)(A), an employer may not conduct a medical examination or ask a job applicant whether they have a disability, or about its nature or severity, before a conditional offer ². The same subsection permits inquiries into the applicant's ability to perform job-related functions. That is why an interviewer may ask "can you perform the essential functions of this role, with or without reasonable accommodation?" before an offer. A kindly meant "do you have any conditions we should know about?" is barred at that stage.

So the practical list has to be derived. A question is a problem when it asks what a person *is* rather than what the job *requires*, and the familiar topics are familiar because they almost always do:

• Age, graduation year, or how long someone plans to keep working.
• National origin, accent, first language, citizenship beyond authorization to work.
• Marital status, children, pregnancy, childcare or family plans.
• Religion, observance, or which holidays someone takes.
• Disability, health, medications, workers' compensation history, absence records.
• Arrest history, and in many places conviction history before an offer.

This is US federal law as it stands in August 2026, stated as public legal fact. Any specific requisition belongs in front of counsel.

Replace each banned question with the one the job needs

For every question you are dropping, write the one that gets what the job actually needs. This is the step the list posts skip, and skipping it is why an interviewer either asks the banned question or asks nothing and loses real information. The substitute is almost always a plain statement of a requirement followed by a question about meeting it.

• Instead of "do you have kids?" or "what does your partner do?" ask the schedule question directly: "This role is on call one weekend in four and the rota is published a month ahead. Does that work for you?" You wanted the availability, not the family.
• Instead of "where are you from?" ask "are you authorized to work in the United States, and will you need sponsorship now or in the future?" Identity documents belong to the I-9, which comes after an offer.
• Instead of "when did you graduate?" ask for the credential itself and for the work: "which degree, and what have you built with it since?" The year is a proxy for age and tells you nothing the transcript does not.
• Instead of "any health issues that would get in the way?" ask "the role involves lifting to 20kg and two site visits a week. Can you perform those functions, with or without reasonable accommodation?" State the function, then ask about the function.
• Instead of "have you ever been arrested?" ask nothing at this stage, and run whatever background check your jurisdiction permits at the point it permits it.
• Instead of "what are you making now?" ask "here is the band for this role. Does that work?" Anchoring on your own band is better negotiating practice anyway.

One more substitution worth planning, because it is now asked badly more often than any of these: how a candidate uses AI in their work. There is a job-related version and a version that drifts toward monitoring, and whether you can legally ask candidates how they use AI separates them.

Where does state and city law go further?

Further in several directions, and the law that applies is the one where the requisition is open rather than where the company sits. Labor Code 432.3, in the version effective January 1, 2026, bars a California employer from seeking an applicant's salary history at all, personally or through an agent, and from relying on it in an offer decision, unless the applicant volunteered it unprompted ³. A remote requisition open in eight states is subject to eight sets of rules.

Criminal-history timing is the second layer, and it is a rule about when a question may be asked. Fair-chance laws set that timing and they do not all set it the same way, so the thing to check is which of a requisition's states and cities have one and what each of them requires. Counsel in each jurisdiction is the cheaper version of that check.

The third layer is newer and specific to how the question is asked. The Illinois Artificial Intelligence Video Interview Act, in force since 2020, requires an employer using AI to analyze recorded video interviews for Illinois-based positions to notify the applicant beforehand, explain how the analysis works and what general types of characteristics it evaluates, obtain consent, and delete the video within 30 days of a request ⁴. Its practical bite is limited: it names no penalty and no private right of action, and it covers only AI analysis of applicant-submitted video, saying nothing about resume screeners or chat-based screens.

The operating rule that falls out of all three: build one question set per role, then check it against the states the requisition is open in before it goes live. A loop checked only against the company's home state is compliant in exactly one of them.

Audit the automated question sets before you retrain the panel

Start with the surfaces that ask the same question of every applicant. Those surfaces also keep the receipt: a form field, a knockout rule and a chatbot branch each leave a stored record of exactly what was asked and of whom. The EEOC settled a case in which tutoring companies had programmed their tutor application software to automatically reject female applicants aged 55 or older and male applicants aged 60 or older ⁵.

That settlement was $365,000, covering more than 200 qualified US-based applicants rejected because of their age, and it resolved the case with no admission of liability. Commentary routinely calls it the first AI hiring settlement. The EEOC's own description is narrower: a date-of-birth cutoff somebody wrote into the software, which is the more useful lesson. A rule you can read in a config file is easier to find than a model's behavior and just as capable of doing the damage, so the audit starts with the fields, not the algorithms.

None of these surfaces sits outside federal selection law: the 1978 Uniform Guidelines reach informal or casual interviews and unscored application forms ⁶, so a knockout field is the same category of thing as a test.

What to open, in order:

1. The application form. Every required field, especially date of birth, graduation year, salary expectations, and anything marked optional that the form will not submit without. 2. Knockout questions. Each one, with the reason it exists written next to it. A knockout with no stated job-relatedness is a filter nobody owns. 3. The screening chatbot's script, in full, including the fallback branches that only fire on unusual answers. Those are the ones nobody has read since launch. 4. The interview guide, last, because a human can correct that one in the moment.

Then keep the interview record as evidence. Scorecards and a transcript turn what was asked into something a third party can read a year later, which is the whole point of keeping them. That record has rules of its own: what an AI notetaker's summary can and cannot go into the hiring file is the question that arrives the week after you start recording, and how ADA accommodations apply to an AI-based assessment is the one that arrives with the first request.

Read the evidence >