When Small Talk Creates Big Risk: Interview Land Mines to Avoid

For multi-state employers, the risk is particularly acute. If an interview elicits almost any type of personal information about an applicant, the applicant may later cite that information as evidence that the employer's decision not to hire them or offer them lower compensation was discriminatory.

Fines for violations can range from $50,000 to $300,000 per person, and the reputational consequences of a discrimination claim can be equally severe.

1. The Expanding Universe of Protected Classes

Across the country, state legislatures and city councils have enacted protections that go far beyond the federal framework. Below, we examine some of the more significant categories of emerging protections that affect interview and hiring practices.

A. Hair Texture and Protective Hairstyles (CROWN Acts)

The Creating a Respectful and Open World for Natural Hair (CROWN) Act movement has seen remarkable momentum since California became the first state to enact such legislation in July 2019. As of 2025, 30 states have now passed some version of CROWN Act legislation, prohibiting discrimination based on hair texture and protective hairstyles associated with race, including locs, braids, twists, coils, Bantu knots, afros, extensions, and cornrows.

The most recent state adoptions include:

• Pennsylvania: Enacted November 25, 2025, effective January 24, 2026, and Rhode Island: Also enacted in 2025, adding protections for natural hair textures and protective hairstyles.

At the federal level, the CROWN Act was reintroduced in the U.S. House of Representatives as H.R. 1638 in February 2025. While the bill has previously passed the House, it has not yet been enacted into law by the Senate. Employers should not wait for federal action; the state-level patchwork already demands compliance.

Practical Impact on Interviews: Interviewers should avoid any comments regarding hairstyles altogether.

B. Height and Weight

Height and weight discrimination protections are gaining traction at both the state and local levels:

Michigan, New York City, Minneapolis (MN), San Francisco (CA), Santa Cruz (CA), Madison (WI), Binghamton (NY), and Urbana (IL) have legislation protecting height and weight. Notably, Minneapolis's ordinance covers both numerical measures and others' subjective impressions (e.g., being perceived as "fat," "thin," "short," or "tall"). New Jersey has a bill currently pending that would add height and weight to the New Jersey Law Against Discrimination.

Practical Impact on Interviews: Interviewers must avoid any comments or questions about a candidate's body size or physical stature. Physical requirements for a position must be genuinely job-related and consistently applied.

C. Personal Appearance

Washington, D.C., protects "personal appearance," defined as outward appearance including bodily condition (including deformities) or characteristics, manner or style of dress, and personal grooming, including hairstyle and beards. Localities that similarly protect an applicant's personal appearance include Howard County (MD) and Santa Cruz (CA).

Practical Impact on Interviews: In jurisdictions with personal appearance protections, interviewers must not make hiring decisions based on a candidate's manner of dress, grooming, or physical characteristics unless directly related to a bona fide occupational qualification.

D. Familial Status

Several jurisdictions have expanded protections related to family and caregiving status, including, for example, New York, Minnesota, California, and Washington, D.C.

Practical Impact on Interviews: Interviewers must never ask about a candidate's marital status, number of children, child care arrangements, pregnancy plans, or caregiving responsibilities. Even seemingly casual questions ("Do you have kids?") can create liability.

E. Salary History

More than 20 states and numerous localities now ban salary history inquiries during the interview and hiring process. States with statewide bans include, for example, Alabama, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Virginia (state agencies), and Washington, as well as the District of Columbia and Puerto Rico.

Practical Impact on Interviews: Interviewers in ban jurisdictions must not ask about current or prior compensation, benefits, or total remuneration. Instead, ask about salary expectations or provide the pay range for the position.

F. Reproductive Health Decisions

Delaware and Hawaii have enacted protections for reproductive health decisions in the employment context. These laws prohibit employers from discriminating against employees or applicants based on their reproductive health choices, including decisions about contraception, fertility treatments, or pregnancy termination.

Practical Impact on Interviews: Interviewers must avoid any questions about reproductive health, family planning, or related medical decisions.

G. Menstruation, Perimenopause, and Menopause

This characteristic is one of the fastest-growing areas of protection. Rhode Island, Illinois, and Philadelphia (PA) currently include menopause and menopause-related conditions as a protected status and require employers to grant accommodations to employees with these conditions. New Jersey and California both have introduced bills protecting the same.

Practical Impact on Interviews: Interviewers must avoid any questions that may act as a proxy for age or that make assumptions about menopausal symptoms, such as heat, lifting restrictions, etc.

2. Interview Best Practices: What Employers Must Do Now

The expanding patchwork of protected classes demands a proactive, systematic approach to interview compliance. Below are the key steps every employer, and particularly those operating in multiple jurisdictions, should take immediately.

A. Train Interviewers on the Golden Rule

Every interviewer should be trained on this principle: never ask a question unless it is directly job-related. If the answer to a question would not help assess whether the candidate can perform the essential functions of the job, the question should not be asked.

B. Avoid Questions That Indirectly Elicit Protected Information

Even seemingly innocuous questions can create liability. For example, asking about year of graduation can reveal age; asking about weekend availability can elicit information about religious practices; asking about arrival and departure times can elicit answers about children. Interviewers should be trained to recognize and avoid these indirect inquiries.

C. Prohibited vs. Permissible Interview Questions

The following chart provides examples of prohibited questions and their permissible alternatives across key areas of emerging protection:

3. Seek Advice and Counsel

The rapid expansion of protected classes at the state and local level shows no signs of slowing. Employers that take a proactive, jurisdiction-by-jurisdiction approach to compliance will be best positioned to minimize risk, avoid costly litigation, and build hiring practices that are both legally compliant and genuinely inclusive.

We encourage clients to contact a member of Baker Donelson's Labor & Employment Group for assistance with jurisdiction-specific compliance reviews, interviewer training programs, and policy updates tailored to your organization's geographic footprint. Our team is ready to help you navigate this complex and evolving landscape.