“How are you feeling?” “How are the kids?” “What have you been up to this weekend?”

These common small-talk questions often feel comfortable because we’re used to asking and answering them in social situations. For interviewers seeking to start an interview, however, they can be potential legal minefields.

When preparing to interview candidates, think carefully about the questions you use to begin the conversation. Choosing the right questions can reveal more about the candidate’s abilities without risking a legal challenge.

Where Are the Lines? 

Title VII of the Civil Rights Act of 1964 prohibits employers from asking questions related to a number of protected categories. For instance, interview questions concerning children or childcare arrangements are prohibited, even if all candidates are asked the same questions. Questions about race, ethnicity, nationality, religion, sex, gender, sexual orientation, age, disability, veteran status, or past convictions also stray into impermissible territory.  

Federal law does not provide the only guidelines employers must follow. Some states have enacted further laws prohibiting employers from making hiring decisions based on additional factors. Some states prohibit discrimination based on any lawful activity, making it potentially dangerous to glean any information about a candidate’s hobbies or personal life.

Even when one or more of these protected characteristics seems apparent from looking at the candidate or listening to them speak, interviewers should avoid the topic. First, interviewers’ initial impressions may be wrong; second, bringing up the topic opens the door to concerns that a hiring decision may be made based on protected characteristics.

Hot Water: Small Talk to Avoid During Interviews 

It’s important to ask questions that relate to the requirements of the job. Yet even some tried-and-true interview questions can reveal information that the interviewer doesn’t want to know and should not have from a civil rights standpoint.

For instance, even the old standby “tell me about yourself” can lead to problems if the candidate decides to divulge their religious views, nationality, or other protected information. While it’s not illegal for candidates to share their information with interviewers, having those facts can put the company in a potentially risky place if the candidate later suspects a hiring decision was made based on that information.

Likewise, it’s important to question one’s own biases so they do not direct conversation. Challenging internal biases is particularly important when interviewers encounter candidates with diverging backgrounds from their own. For instance, interviewers shouldn’t assume that female candidates will enjoy shopping or that tall candidates enjoy basketball.

Often, biases and stereotypes like these are not maliciously driven. Rather, they’re an attempt by the mind to find common ground with a stranger. Lacking information about the actual candidate, the interviewer’s mind may try to fill in gaps with preconceived notions it has developed from previous experiences.

It’s natural to want to pursue small talk that covers topics the interviewer and candidate have in common. If both parties have children, for example, or they share the same religion, it’s normal to want to compare experiences to build rapport. Instead, help interviewers learn to channel this impulse into a permissible area the interviewer and candidate have in common: the interview itself.

Building Rapport Without Breaking the Law 

Interviewing is a skill, which hiring managers and human resources professionals can be trained to do. Knowing which questions could take the interviewer and candidate into questionable territory is also a skill. Training, therefore, becomes an essential tool in helping interviewers avoid potentially sticky situations and focus on understanding the candidate’s qualifications for the work.

As part of training, teach interviewers how to steer the conversation away from potentially problematic topics. For instance, if an interviewer asks, “Did you have a good weekend?” only to hear about the candidate’s church softball game, the interviewer needs the skills to recognize the potential issues surrounding that answer and move the conversation back to a job-relevant topic.

As a rule, interviewers should practice sticking to questions related to the job. Many of these questions can also serve as icebreakers or rapport-building questions. “Why are you interested in working here?” can both help the parties find a common conversational ground while also focusing on the work, for example.

By teaching interviewers to spot and avoid potentially problematic questions, companies can improve their hiring process while reducing their risk of legal trouble.

Note: Information in this article is provided for general guidance and is not intended as legal advice. If you have a specific legal question, contact an attorney licensed to practice law in your area.