Everyone knows that discrimination is illegal, but do you know the breadth of questions which are considered discriminatory in employment law? Small businesses often have a harder time in this area, because there is not always a HR (human resources) specialist on staff. Many traditional employment applications that you might be using have questions which are illegal and can ruin your small business in court. Applicants can sue you for compensatory and punitive damages as well as legal fees. If you have any doubt as to the legality of a question/requirement, whether in a job posting, on an application form, or as something you can ask in an interview, consult with an experienced employment attorney. However, these questions are definite NOs.
Don’t ask: When did you graduate high school or college?
This question is illegal because it discriminates in two ways: (a) age – their graduation date will give you an idea of how old they are; (b) minority – minorities may be less likely to graduate. You are also not allowed to ask if they DID graduate.
Instead: “Tell me about your educational background.” “Have you studied this (relevant subject) in a school setting? At what levels?”
Don’t Ask: Is English your native language?
This question is discriminatory against minorities, non-native Americans, and members of the international community with work permits.
Instead: Do you speak English fluently? Or, if the job requires someone to be multi-lingual, “Which languages do you speak proficiently?”
Don’t Ask: Are you a U.S. citizen?
This question discriminates against legal residents and others with work permits.
Instead: Are you legally able to work in the United States?
Don’t Ask: Are you married, have kids, planning to start a family?
These questions are illegal because they discriminate on the basis of gender. They do not 
have anything to do with the job. There are some lawyers who say that questions regarding children and child care (in terms of ability to work late) are acceptable, providing the same questions are asked of both male and female applicants.
Instead: “Do you have time for a full-time job?” or “Are you available to work overtime?” or “This position requires some travel, are you able to travel?”
Don’t Ask: Are you healthy? or How did you get your injury?
These questions are illegal because they can be discriminatory to those with disabilities.
Instead: “Are you able to fulfill the requirements of this position?”
If the person is visibly handicapped, you may be required to make accomadations to assist them in fulfilling the requirements of the job. The best thing to do is to not bring up the disability at all, and to consult an experienced employment lawyer about what you need to do.
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If you do have specific requirements for a unique job description, your best bet is to use previous work experience as a measure of appropriateness to the position. This will generally allow you to remain “legal”. Questions regarding ability to obtain licenses, etc are acceptable. You should outline the requirements and ask the person if he/she meets them.
No matter what you ask, you need to maintain records which detail why each candidate was rejected or hired. This will provide security in the event of a threatened discrimination lawsuit.
Employment laws are frequently changed and updated, be sure to consult with a lawyer regarding any questions or potential issues.