Illegal Interview Questions in Wisconsin: What Employers Cannot Ask

Federal law under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits employers with 15 or more employees from asking interview questions that directly or indirectly discriminate based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act (29 U.S.C. § 623) protects workers age 40 and older from age-based questioning by employers with 20 or more employees. The Americans with Disabilities Act (42 U.S.C. § 12112) prohibits employers with 15 or more employees from asking disability-related questions before making a conditional job offer, with limited exceptions for direct questions about ability to perform job functions.

The Equal Employment Opportunity Commission (EEOC) enforces these federal laws. The EEOC applies the "disparate impact" doctrine, meaning employers cannot ask questions that appear neutral but disproportionately screen out protected groups. Permissible questions focus on job-related qualifications, experience, technical skills, and ability to perform essential functions. The EEOC provides compliance guidelines recommending employers avoid questions about age, family status, medical history, arrest records (with narrow criminal background exceptions), national origin, military discharge status, and personal life details unless directly job-related. Remedies under federal law include back pay, front pay, compensatory damages, punitive damages (up to $300,000 for large employers), injunctive relief, and attorney fees.

Wisconsin Statute § 111.322 establishes broader protections than federal law by prohibiting employment discrimination based on age (without a minimum age threshold like the federal 40-year requirement), race, color, creed, sex, national origin, ancestry, disability, arrest record, conviction record (with narrow exceptions), and sexual orientation. The Wisconsin Equal Rights Division enforces these protections for all employers with one or more employees, creating more comprehensive coverage than federal law's 15-employee threshold.

Wisconsin's law is stronger than federal in several respects. First, it applies to all employers regardless of size, whereas federal Title VII only covers employers with 15 or more employees. Second, Wisconsin explicitly protects against discrimination based on ancestry and sexual orientation, which are not directly covered by federal Title VII (though sexual orientation is increasingly protected through federal interpretation). Third, Wisconsin provides specific protections against questions about arrest records and criminal conviction history, which federal law does not address in the hiring context.

Under Wisconsin law, permissible interview questions must be "job-related and consistent with business necessity." Prohibited topics include: (1) questions about age or dates of high school graduation; (2) questions about marital status, spouse employment, or family planning; (3) questions about physical or mental health, medical conditions, or disabilities (except those directly related to essential job functions after a conditional offer); (4) questions about arrest or conviction records, except employers may ask about convictions directly related to the job's essential functions; (5) questions about national origin, ancestry, or native language (except English-language proficiency for job-related reasons); (6) questions about religious beliefs or observance; (7) questions about military discharge status or service branch; (8) questions about sexual orientation or gender identity.

Wisconsin employers may ask: whether the applicant can perform job-specific duties, about relevant education and work experience, about technical skills and certifications, about availability and scheduling flexibility (job-related), and about willingness to comply with workplace policies. Remedies under Wisconsin law include cease-and-desist orders, back pay, compensatory damages for emotional distress and reputational harm, punitive damages, injunctive relief, and attorney fees and costs.

Wisconsin Statute § 111.335 provides narrow exceptions to anti-discrimination protections in hiring. Employers may consider protected characteristics if they constitute a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business, but this exception is interpreted very strictly and rarely applies in practice. For example, an employer cannot require a specific sex for most jobs based on customer preference, stereotypes, or tradition.

Regarding criminal history, Wisconsin allows employers to consider conviction records (not arrest records) if directly related to the essential functions of the job. This requires an individualized assessment of the conviction's relevance to the specific position. Employers cannot automatically exclude applicants based on past convictions; instead, they must evaluate recency, nature of the offense, rehabilitation, and job requirements. This means some convictions may be considered while others are not, depending on the position.

Disability is another nuanced exception: employers may ask about ability to perform essential job functions during the conditional offer stage and may request medical examinations before employment begins. However, pre-offer disability inquiries are prohibited. Employers may also ask about functional limitations related to specific job tasks ("Can you lift 50 pounds?") but cannot ask general disability or medical history questions before making a conditional offer.

For religious accommodation, employers are not required to accommodate religious practices that create undue hardship to business operations, though this is a narrow defense. Additionally, Wisconsin's prohibition on arrest record inquiry has a limited exception: employers in certain industries regulated by licensing boards (such as health care, law enforcement, or financial services) may inquire about arrests pending adjudication if substantially related to job duties, but this exception is narrowly tailored and requires clear documentation of job relevance.

Step 1: Document Everything Immediately. Keep detailed records of what was asked during the interview, including the exact wording of questions, who asked them, when the interview occurred, and whether other candidates were asked the same questions. Write down your recollection as soon as possible after the interview. Save all written communications (email, text, LinkedIn messages) from the employer. If others witnessed the interview, note their names and contact information. Retain copies of the job posting and job description to show the questions were not job-related. Take screenshots of any interview materials or questions provided in advance.

Step 2: File an Internal Complaint if Possible. Before filing with the state agency, consider whether the employer has an internal complaint or HR process. If the employer has a formal EEO policy or complaint procedure, document your request to report the violation internally, including the date, who you spoke with, and what was said. However, filing internally is not required under Wisconsin law, and you can proceed directly to the Equal Rights Division. Keep records of any internal complaint you file, including when and to whom you submitted it.

Step 3: File with the Wisconsin Equal Rights Division. The Equal Rights Division investigates violations of Wisconsin Statute § 111.322. You must file a verified complaint within four years of the alleged discrimination (the statute of repose). File online at https://drl.wi.gov/ERD or submit a paper complaint form. Include: (1) your name, address, and contact information; (2) the employer's name, address, and location; (3) a detailed description of what happened, including dates, times, and specific questions asked; (4) explanation of why the questions violate Wisconsin law; (5) names of witnesses; (6) copies of relevant documents (job posting, communications, interview notes); (7) what remedy you seek (typically back pay if you didn't get the job, compensatory damages for emotional harm, and attorney fees). The Equal Rights Division contact is 608-266-6860 or equal.rights@wi.gov.

Step 4: Understand the Investigation Process. After filing, the Equal Rights Division will assign an investigator who will contact the employer. The investigation typically takes 120 days but can extend longer for complex cases. The investigator will request documents from the employer, including interview notes, hiring records, questions asked of all candidates, and the hiring decision rationale. You will be asked to provide additional details through written statements or interviews. The employer will have opportunity to respond to allegations. If the investigator finds probable cause that discrimination occurred, they will attempt conciliation (settlement negotiation). If conciliation fails, the matter may proceed to a hearing before an administrative law judge. You have the right to legal representation throughout this process.

Step 5: Consult an Attorney Early. Contact an employment law attorney in Wisconsin who specializes in discrimination claims as soon as possible after filing with the Equal Rights Division, ideally before submitting your complaint. An attorney can help you document the violation properly, draft a compelling complaint, prepare for investigation interviews, and negotiate settlement. Many employment discrimination attorneys work on contingency, meaning you pay no upfront fees and they collect a percentage of any award or settlement. Wisconsin State Bar's lawyer referral service can help identify qualified employment attorneys. An attorney is particularly important if the employer contests your complaint or if the case proceeds to hearing.