Illegal Interview Questions in Massachusetts: What Employers Cannot Ask

Federal law prohibits discrimination in hiring through several statutes enforced by the Equal Employment Opportunity Commission (EEOC). Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits discrimination based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, prohibits age-based discrimination for employees aged 40 and older in companies with 20+ employees. The Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, restricts disability-related inquiries and medical examinations until after a conditional job offer is made.

Federally, employers cannot ask questions designed to elicit protected class information, including: age or birth date (except to verify legal working age); questions about race, color, ethnicity, or national origin; religious beliefs or practices; marital or family status; disability, medical conditions, or mental health history; genetic information; arrest or conviction records (with limited exceptions); or sexual orientation. Questions must be job-related and uniformly applied to all candidates. The EEOC investigates complaints under a "disparate treatment" standard — whether the employer treated the applicant less favorably because of a protected characteristic. Federal law applies to employers with 15+ employees and provides remedies including compensatory damages, punitive damages (up to $300,000 for large employers), back pay, and attorney fees.

Massachusetts law provides broader protections than federal law in several respects. Under Massachusetts General Laws Chapter 151B, Section 4, employers are prohibited from making inquiries or requesting information regarding: age, ancestry, color, disability, genetic information, national origin, race, religion, sex, sexual orientation, or gender identity. The law explicitly protects sexual orientation and gender identity — categories not explicitly protected under federal Title VII prior to recent EEOC guidance — and covers employers with as few as one employee, significantly lower than the federal 15-employee threshold.

Massachusetts also prohibits inquiries about marital status, number and ages of children, childcare arrangements, and pregnancy status in a manner designed to screen out or discourage applicants. The state has a separate statute, Massachusetts General Laws Chapter 149, Section 24L, which specifically restricts questions about criminal history and requires individualized assessment if such records are considered. Additionally, Chapter 151B, Section 6 establishes that interview questions must be job-related and consistently asked of all applicants in the same position.

Massachusetts law is stronger than federal law in three key ways: (1) it covers all employers regardless of size, whereas federal law requires 15+ employees; (2) it explicitly protects sexual orientation and gender identity before federal courts fully recognized these categories; (3) it imposes stricter standards on criminal history inquiries, requiring employers to demonstrate legitimate business reasons and proportionality. Massachusetts also recognizes additional remedies under state law, including mandatory damages, attorney fees as of right (not discretionary), and enhanced civil rights liability. The state's enforcement agency, the Massachusetts Commission Against Discrimination (MCAD), operates independently of the EEOC and can award damages for emotional distress and reputational harm that may exceed federal standards.

Massachusetts employment discrimination law contains limited exceptions. The Bona Fide Occupational Qualification (BFOQ) defense allows discrimination based on a protected characteristic if it is reasonably necessary to the normal operation of the business. This exception is narrowly construed and rarely succeeds; for example, an employer cannot refuse to hire someone based on age stereotypes even if customers prefer younger workers.

The criminal history exception is significant: employers may inquire about criminal convictions if the inquiry is job-related and consistent with business necessity, but only after an initial screening process. However, employers cannot make blanket exclusions based on criminal records; they must assess factors including the nature of the crime, time elapsed, and job requirements. Employers in certain industries (childcare, elder care, transportation) have broader latitude to inquire about criminal history due to statutory exceptions related to public safety.

Genetic information inquiries are broadly prohibited under both state and federal law, with no BFOQ exception. Questions about disability are prohibited except to determine if accommodations are needed or to verify ability to perform essential functions. Inquiries about union membership are protected under labor law, not considered discrimination. References to third-party discrimination (e.g., "customers won't want to work with someone of your religion") do not constitute a valid BFOQ defense. Seniority systems and legitimate business reasons must be documented and consistently applied; subjective preferences or convenience for the employer do not constitute legitimate business necessity. Religious employers have limited exceptions under Title VII and state law for religion-based hiring in ministerial or doctrinal roles only.

Step 1: Document all interview communications immediately. Create a record of: (a) the exact questions asked in writing, including whether they were scripted or ad-hoc; (b) the date, time, and location of the interview; (c) the names of all interviewers and any witnesses; (d) how the interviewer phrased follow-up questions if you disclosed protected information; (e) any comments made before, during, or after the interview that suggest discriminatory intent; (f) your qualifications compared to the hiring decision; (g) communications via email, text, or phone before/after the interview. Request a copy of the job description and interview questions used for other candidates if possible through a records request after filing a complaint.

Step 2: Attempt internal complaint if the employer has an HR department. Notify HR in writing (email preferred for documentation) of the improper questions, stating the specific question, the context, and why it violates Massachusetts law. Request a written response and preserve all documentation of this complaint. Note that internal complaints are optional in Massachusetts; you are not required to exhaust internal remedies before filing with MCAD, and retaliation for making an internal complaint is illegal under Massachusetts General Laws Chapter 151B, Section 4.

Step 3: File a charge with the Massachusetts Commission Against Discrimination (MCAD). Deadline: 300 days from the date of the alleged violation. File online at mass.gov/service-details/file-complaint-with-mcad or submit a written complaint form by mail. Required information: (a) your name, address, phone number, and email; (b) employer name, address, and phone number; (c) specific date(s) of the interview; (d) the discriminatory questions asked; (e) protected class characteristic(s) targeted; (f) the hiring decision and outcome; (g) whether you filed with EEOC (dual-filing is permitted). MCAD accepts dual-filed charges with the EEOC simultaneously, which is recommended to preserve federal claims.

Step 4: Expect the investigation process to last 4-8 months. MCAD will: (a) send a copy of your complaint to the employer; (b) request a written response from the employer explaining their hiring process and questions; (c) conduct interviews with you, the employer, and potentially witnesses; (d) review hiring records for comparator candidates (others hired or not hired for the same position); (e) determine whether there is "probable cause" to believe discrimination occurred. If probable cause is found, MCAD will attempt conciliation. If conciliation fails, the case proceeds to a hearing before an administrative law judge. You will have the opportunity to testify, cross-examine the employer's witnesses, and present evidence of discriminatory intent or disparate impact.

Step 5: Consult an employment law attorney if the employer's response suggests a pattern of discrimination, if the job loss resulted in significant financial harm, or if you have comparator evidence. Massachusetts employment law attorneys work on contingency in discrimination cases and can represent you at no upfront cost. An attorney can: (a) strengthen your complaint with legal citations and framing; (b) conduct discovery to obtain hiring records, interview notes, and communications; (c) identify pattern evidence showing systematic discrimination; (d) negotiate a settlement; (e) represent you at a hearing before the administrative law judge. Attorney fees are recoverable from the employer if you prevail, making attorney representation economically viable even for lower-wage positions.