Illegal Interview Questions in New Jersey: What Employers Cannot Ask

Federal employment law under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits employers from asking questions that discriminate based on race, color, religion, sex, or national origin. The Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., restricts disability-related inquiries before a conditional job offer is made. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, prohibits age-related questions for employers with 20 or more employees. The Equal Employment Opportunity Commission (EEOC) enforces these laws and investigates complaints.

Federal law permits job-related questions about skills, experience, and education. However, federal law does not restrict questions about arrest records or some other topics that New Jersey specifically prohibits. The EEOC investigates federal charges and can file suit on behalf of employees. Remedies include back pay, front pay, compensatory damages for emotional distress, and punitive damages in cases of intentional discrimination.

New Jersey's Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq., is significantly broader and stronger than federal law in protecting job applicants from prohibited interview questions. The state law applies to employers with one or more employees, whereas federal Title VII applies only to employers with 15 or more employees—this means New Jersey provides protection to workers at far smaller companies.

New Jersey specifically prohibits inquiries about: age (or birth date); marital or family status; plans for parenthood; childcare arrangements; sexual orientation; gender identity; disability or medical conditions (including requests for genetic information); arrest records without conviction; ancestry or national origin; religious beliefs or practices; credit history (for most positions); and worker's compensation history. These protections extend beyond what federal law covers. For example, federal law does not restrict arrest record inquiries, but New Jersey's Criminal History Inquiry Law (P.L. 2014, c. 32) generally prohibits employers from asking about arrests that did not result in conviction.

Under N.J.A.C. 13:13-2.3, employers must confine pre-employment inquiries to information that is job-related and consistent with business necessity. The regulations provide detailed examples of lawful versus unlawful questions. New Jersey's Division on Civil Rights (part of the Department of Law and Public Safety) enforces the NJLAD.

Remedies available under state law include back pay, front pay, compensatory damages for emotional distress, humiliation, and injury to reputation, and punitive damages if the employer's conduct was willful or in reckless disregard of the law. The Division can also award reasonable attorney fees and costs. The state standard for proving discrimination is often more favorable to employees than federal standards, and New Jersey courts have interpreted the NJLAD expansively.

Certain interview questions are lawful in New Jersey if they are job-related and consistent with business necessity. Employers may ask about education, work experience, relevant skills, ability to perform job functions, references, and professional licenses or certifications required for the position. For safety-sensitive positions or roles involving care of vulnerable populations, employers may ask limited questions about criminal convictions (not arrests) if a direct relationship exists between the conviction and the job duties, and the employer has conducted an individualized assessment under the Criminal History Inquiry Law.

Questions about disability may be asked only after a conditional job offer is made, in compliance with the ADA and New Jersey's law, and must be asked of all applicants in the same job category equally. Medical examinations can be required only after a conditional offer, and all such exams must be job-related and required of all employees in the same job category.

Employers in certain licensed industries (such as healthcare or childcare) may have additional statutory exceptions that allow inquiries into criminal history or certain medical conditions directly related to licensure or statutory requirements. However, these exceptions do not override the requirement that inquiries be job-related and necessary.

During a background check phase (after a conditional offer), employers may lawfully inquire about criminal convictions, but must follow the "ban the box" procedures and individualized assessment requirements of P.L. 2014, c. 32. An exception exists where federal law, state law, or local ordinance explicitly requires consideration of criminal history—for example, certain positions in law enforcement or requiring professional licenses.

At-will employment is recognized in New Jersey, but it is subject to public policy exceptions: an employer cannot refuse to hire or make employment decisions based on protected characteristics, and doing so violates public policy. Questions that elicit protected-class information violate public policy and can form the basis for a discrimination claim, regardless of at-will status.

Step 1: Document the prohibited question immediately. Write down the exact question asked, the date, time, location, who asked it, any witnesses present, and the context. If the question appeared in writing (application form, online questionnaire, email), save or photograph the original. Keep copies of all communications with the employer regarding this application. Document any follow-up about the topic (e.g., if they asked a follow-up question or made a statement about your protected characteristic).

Step 2: File an internal complaint with the employer if you feel comfortable doing so and if the employer has a complaint procedure. Review the employer's handbook, website, or materials for any anti-discrimination or complaint procedures. Submit a written complaint to Human Resources or the designated contact, describing the question, when it was asked, who asked it, and why you believe it violates New Jersey law. Keep a copy of your complaint and any response. This step is not required but can sometimes prompt corrective action and creates an internal record. Internal complaints do not extend the filing deadline with the Division on Civil Rights.

Step 3: File a charge with the New Jersey Division on Civil Rights within 180 days of the prohibited question or the discriminatory hiring decision (e.g., if you were not hired). Visit the Division's website at nj.gov/oag/dcr or call (609) 292-4100 (Trenton office). You may file online, by mail, or in person. Your charge must include: your name, address, and phone number; the employer's name, address, and phone number; the date of the prohibited question or discriminatory act; a clear description of what happened, the specific question asked, and why you believe it was unlawful; the names of witnesses if any; and any documentation (emails, application materials, notes of the conversation). There is no fee to file. You can file even if you did not get the job or did not report it internally first. Alternatively, if the employer is covered by federal law (15+ employees), you may file a charge with the EEOC, which will defer to New Jersey and forward your charge to the Division.

Step 4: Expect the investigation to begin within 30 days of filing. The Division will send a copy of your charge to the employer, who has 25 days to respond. The investigator will review the employer's response, interview you and the employer (and possibly witnesses), and examine documents. The investigation typically takes 60–180 days, though complex cases may take longer. You will be notified of the investigator's findings. If the Division finds probable cause that discrimination occurred, it will attempt conciliation (settlement). If conciliation fails, the Division may file a complaint with the Office of Administrative Law, where a hearing is held before an administrative law judge. You have the right to be represented by an attorney throughout this process.

Step 5: Consult an employment law attorney if: (1) you want to understand your rights before filing; (2) the employer retaliates against you for filing (retaliation is illegal under N.J.S.A. 10:5-43); (3) the Division finds probable cause and conciliation fails; (4) you want to negotiate a settlement; or (5) you believe you have suffered significant damages. An employment discrimination attorney in New Jersey can represent you before the Division and in litigation, and if you prevail, the employer must pay your reasonable attorney fees and costs under N.J.S.A. 10:5-46. Many employment attorneys work on contingency for discrimination cases.