Interviewing potential employees is one of the routine aspects of running a business. Usually an employer wants to know everything about a candidate for employment so as to hire good, reliable talent. But did you know that under California law, some interview questions are unlawful? There are several areas of a candidate’s life that are off-limits during an interview and violating those prohibitions can lead to significant penalties.
- Criminal History
In 2017, California passed AB 1008, which prohibits California employers with five or more employees from inquiring about an applicant’s history of arrests or convictions. An employer may only inquire about an applicant’s conviction history once a conditional offer of employment has been made to the applicant.
- Salary History
On January 1, 2018, it became prohibited to inquire as to an applicant’s salary history. Further, an employer cannot rely on salary history when deciding whether to offer the applicant the job or when deciding how much to pay the recently hired employee. BUT if the applicant voluntarily discloses salary history, an employer may consider that information in determining a pay rate for the position so long as prior salary is not the only factor justifying any offered rates. An employer CAN ask about an applicant’s salary expectations for a position during the interview.
- An Applicant’s Family/Sexual Orientation
All questions about marital status, parenthood, or future plans regarding marriage and family are prohibited. After the applicant is hired, an employer can ask these questions, but absolutely not during the interview stage. This can include certain questions that may appear benign but implicate violations. Questions such as “what is your maiden name?” or “what does your spouse do?” are all questions that are inappropriate during an interview. Further, an employer cannot ask questions regarding gender identity and sexual orientation.
- Age Related Questions
An employer may not ask an applicant their age during an interview as this is prohibited under both California’s Fair Employment and Housing Act (FEHA) and the federal Age Discrimination in Employment Act (ADEA). Even innocuous questions such as “What year did you graduate high school?” can be interpreted as the employer trying to determine an applicant’s age in violation of the law. Age questions can be asked ONLY if the job has an age requirement, such as being a bartender.
- An Applicant’s Origins/Location
Employers cannot inquire as to the national origin of an applicant. Questions like “Where were you born?” are clear attempts to determine an applicant’s national origin. An employer may only as about an applicant’s citizenship status if it is a legal job requirement. An employer may also ask whether the applicant has a legal right to work in the United States, but only so long as it is not done on a discriminatory basis, i.e. based on an applicant’s race or ethnicity.
Additionally, an employer cannot discriminate based on an applicant’s location, so questions like “Do you live nearby?” should not be asked. Rather, an employer should ask something like “are you willing to relocate for the job?”.
- Medical History/Alcohol or Drug Abuse
Before an offer of employment, it is inappropriate to ask an applicant about their health or any medical conditions or disabilities they may have. Nor may an employer ask about worker’s compensation claims or absences due to illness.
Similarly, an employer may not ask about whether an applicant drinks, smokes or take illegal drugs. Importantly, the employer must specify illegal if asking about taking drugs. This is because asking about drugs in a generic sense may incline an applicant towards disclosing legal prescriptions, which could lead to discrimination claims under the Americans with Disabilities Act.
- Religious Affiliation
Employers may not ask about an applicant’s religious affiliation or about what holidays the applicant celebrates. Questions like “Where do you go to church?” are similarly prohibited.