I’ve worked in H/R and as a rule, minus any state or local law, it’s not illegal to ask, so long as you don’t base your hiring decision on that policy. Most companies ward off lawsuits simply by not asking those questions.
But even when you’re sued in order to win a lawsuit not only does the person no hired have to PROVE that the question was asked, PROVE that the answer was the result of the answer, he would have to PROVE that the company has a consistant policy of asking said question and basing the hiring choices on that question.
Like sexual harrassment suits, most of these cases settle out of court 'cause it’s easier. In Illinois around 1/2 of 1% of all sexual harrassment suits that make it to court find in favour of the prosecution. It’s unlikely if the company if the company were to fight you’d win.
But the company doesn’t want to spend the money so they settle.
Bottom line is, answer the question then file a complaint with the EEOC, they will investigate and see.
I noticed many companies get around this now by making you fill in online applications and if you don’t answer a question with a drop down box, you can’t procede. Technically they’ve blocked you in.
Also remember if you bring up something, the employer has every right to follow it up. For instance if I said:
“The standard hours for this job is 9am - 6pm. Is there any reason why you could not work these hours.” If you bring up kids or whatever you’re employer has a right to follow up with this. Suppose you say, “Generally not, but my kids are at that age where they still may need a babysitter.”
Because of the fear of lawsuits, I’ve actually had interviews, where the interviewer says "I will read you a list of question, you must answer them to the best of your ablity. I can neither explain nor clarify any question. All I can do is re-read you the question, if you don’t understand or choose not to answer, please say “pass.”
Also remember these are general rules/laws and don’t always apply. For instance if a business is small they don’t necessarily have to abide by these laws. For instance if your business is small enough you CAN discriminate by race for example. This is why, say a Chinese resturant can hire only Chinese waiters or waitresses. Again, the business has to be small and fit a set of rules to have that exception