Can You Legally Ask Candidates How They Use AI?

Is Asking About AI Use a Lawful Interview Question?

Yes. No federal, state or city law prohibits asking a candidate how they work with AI, and the EEOC's general rule for pre-employment inquiries is that what you request should be limited to what is essential for determining whether a person is qualified for the job ¹. A question about method, on work you are actually hiring for, clears that bar. What it has to avoid is collecting anything else on the way.

The EEOC's own caution names the failure mode. Pre-employment inquiries that relate to or disproportionately screen out members of a protected group may be used as evidence of an employer's intent to discriminate unless the questions can be justified by some business purpose ¹. The wording therefore carries weight that the topic does not. "Which AI tools do you use?" gathers a list of subscriptions. "Walk me through the last time an assistant handed you something confident and wrong" gathers work.

Two habits carry most of the protection. Ask every candidate in the requisition the same question at the same stage, because a question put only to the candidates who look like they might not use AI is a question about something other than AI. And record the answer as what the candidate described, in the same place as the rest of your interview notes, rather than as an impression of the person.

The risk is not in the topic. It is in the file: who was asked, what was written down, and what the writing was used to do.

When Does the Answer Become an Automated Employment Decision?

The moment software turns it into a simplified output that carries the call. New York City's rules define substantially assist or replace discretionary decision making three ways: relying solely on a simplified output such as a score, tag, classification or ranking; weighting that output more heavily than any other criterion; or using it to overrule conclusions drawn from other factors, including human decision-making ². An interviewer weighing a transcript against four other things is none of those.

Cross that line and two duties attach, on two different triggers. The bias audit, no more than a year old with a summary of results published, attaches to an employer or employment agency using the tool in the city ². The notice, at least 10 business days before the tool is used, runs to a candidate for employment who resides in the city; it can sit on the employment section of your website, in the job posting, or go by mail or email, and the rules accept any of the three ². The audit is the expensive half, and it is an exercise on your own applicant flow rather than a document the vendor hands you.

Illinois has two rules and they catch different things. The Artificial Intelligence Video Interview Act applies when you ask applicants to record video interviews and run an AI analysis of them: notify the applicant before the interview, explain how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants, and obtain consent. An applicant who has not consented may not be evaluated by it at all ³. Since January 1, 2026 the Illinois Human Rights Act adds a broader duty. Using AI in recruitment or hiring in a way that has the effect of subjecting people to discrimination on a protected basis is a civil rights violation, using zip codes as a proxy for a protected class is a civil rights violation, and so is failing to notify a person that AI is being used for those purposes ⁴.

Colorado's SB 24-205 took the same substantial-factor shape and added a risk-management program, an impact assessment, notice to the person, a chance to correct inaccurate personal data, and an appeal with human review where technically feasible ⁵. None of it ever bound anyone. Its start moved from February 1 to June 30, 2026 ⁶, and Governor Polis signed a full repeal and reenactment that May ⁹. The replacement takes effect January 1, 2027 and drops the risk-management program and the impact assessment, so a compliance summary telling you Colorado binds employers this year is out of date.

None of this reaches an interviewer asking a question and writing down the answer. All of it reaches a transcript fed to a model that returns a fit number.

What Turns a Fair Question Into an ADA Problem?

Asking why the candidate needs the assistant, rather than how they use it. The ADA regulations make it unlawful to conduct a medical examination of an applicant, or to ask whether an applicant is an individual with a disability or about the nature or severity of that disability, before an offer ⁷. The permitted form is inquiry into the ability to perform job-related functions, including asking an applicant to describe or demonstrate how they would perform them ⁸.

That line matters more with AI than with most tools, because the same software is assistive technology for a lot of people. Speech-to-text, reading and summarizing support, drafting help for dyslexia: a candidate answering "how do you use AI at work" may be one follow-up away from telling you something you were not permitted to request. Push on why, and you have requested it.

So ask about the task. "Here is a brief like the ones this role gets. Describe how you would take it from here" sits close to the words the regulation itself uses, which permit asking an applicant to describe or demonstrate how, with or without reasonable accommodation, they will perform job-related functions ⁸. It also produces a better answer than a tour of somebody's toolbar.

If a candidate volunteers that AI is an accommodation, the conversation has changed job. It is an accommodation conversation now, handled by whoever handles those, and it does not belong in the evaluation notes. Running that during a timed exercise has its own mechanics, which is where accommodations on an AI-based assessment comes in.

Write the Question So the Answer Is Evidence

Ask every candidate the same question about work they actually did, and write the scoring anchors before you hear the first answer. Comparability is what makes an answer usable and a decision defensible: one prompt, one set of criteria, notes on what each person said rather than how they came across. The legal shape and the useful shape are the same here.

Three questions do most of the work, and all three are about a task rather than a habit:

• The first move. "Take the last piece of work you did with an assistant. What did you ask for first, and why that first?" The answer separates people who framed the problem from people who asked for the deliverable.
• The wrong answer. "When did it give you something confident and wrong, and how did you find out?" The useful half is the finding out: a page opened, a number recomputed, a colleague asked.
• The boundary. "What did you keep and do yourself on that task, and why not hand it over?" A candidate who kept nothing and a candidate who kept everything are both telling you something.

Leave out how many hours a week they use it, which subscription they pay for, what they use at home, and whether they could do the job without it. None of those is job-related, the first three collect data you have no use for, and the last one walks straight into the ADA problem above. The same test sorts the rest of the guide, and which interview questions are actually illegal, and what replaces them works from the substitute the job needs rather than from a banned list.

Then have a person score it against written anchors. Running the round as a structured interview is the difference between comparable answers and four managers with four impressions, and if you want a longer bank to draw from, twelve questions that show how a candidate uses AI are already written down.

Which Jurisdiction's Rules Apply to a Remote Candidate?

Mostly the candidate's, and in New York City, both. Its notice duty runs to a candidate for employment who resides in the city, while its bias-audit duty follows your own use of the tool in the city ². Illinois's video-interview statute applies when you consider applicants for positions based in Illinois ³, and the Illinois Human Rights Act reaches any individual performing services for remuneration within that state ⁴. One remote requisition can sit under two or three sets of duties at once.

The practical answer is not a per-state question matrix. Write one question set that clears the strictest rule you touch, publish one notice, and apply both everywhere. A notice costs a paragraph on the employment section of a careers site, posted ten business days ahead of use ². A fifty-state decision tree costs a recruiter on every requisition, forever.

Retention travels with the question. On an applicant's request, Illinois requires video interviews to be deleted within 30 days, including all electronically generated backup copies, and requires anyone who received a copy to be instructed to delete it too ³. That is a build item rather than a policy sentence, because somebody has to be able to find every copy.

The honest limit: all of this settles whether you may ask and what you must disclose. It settles nothing about whether the answer predicts anything on the job, which is a separate question with its own evidence. Write down which of the two you are claiming, because the policy you publish is where that sentence belongs.

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