Questions NOT To Ask An Interview Candidate in California: Routine Mistakes And “Illegal Questions"

California and federal laws prohibit discrimination against both employees and job applicants. Under the California Fair Employment and Housing Act (FEHA), an employer may not take any “adverse employment action” on the basis of an individual's membership in a protected group. An adverse employment action is broadly defined to include any action or pattern of conduct that materially and adversely affects the terms, conditions, or privileges of employment. This not only includes terminating or demoting an employee, but anything that impairs a person's prospect for advancement (i.e., passing up promotion or not hiring a candidate).

These protected groups include, but are not limited to, the following:

• Age

• Race

• Color

• Religion

• Sex (including pregnancy, childbirth, breastfeeding, and related medical conditions)

• Gender (including gender identity and gender expression)

• Sexual Orientation

• Marital Status

• National Origin

• Ancestry

• Mental and Physical Disability (including HIV and AIDS)

• Medical Conditions (such as cancer and genetic characteristics)

• Genetic Information

• Military and Veteran Status

It is a misnomer that any question related to these categories are “illegal” per se. Liability under FEHA does not arise merely from asking the question, but from the adverse employment action – the failure to hire based on an applicant’s membership in a protected group. As a practical matter, employers should avoid asking questions related to a candidate’s membership in a protected group since the person may reasonably infer they were not hired based on their answer.

In addition, California has recently enacted legislation limiting an employer’s ability to make pre-hire inquiries regarding an individual’s criminal and salary history. These questions are more appropriately described as “illegal interview questions.”

Whether the interview question is outright prohibited (asking about salary history) or just suggestive of an intent to discriminate (asking about sexual orientation), employers should avoid even an appearance of impropriety.

Here are a few of the common questions that cause trouble for California employers:

WHAT NOT TO ASK: What is your date of birth?

WHY NOT: While this question seems innocuous, employers are generally not permitted to make personnel decisions based on age alone. Age may of course be appropriate in determining whether an applicant meets threshold requirements, such as being over 21 for a job serving alcohol. Questions should be narrowly tailored to the specific requirements of the job (i.e., asking whether an applicant is over 21 as opposed to asking for date of birth or age). Finally, if an employer has a non-discriminatory reason for requesting an applicant's date of birth in an application form (i.e., for certain record keeping requirements), it is best practice to keep this biographic information segregated from any hiring decision maker.

ASK INSTEAD: Are you over the age of 18? Are you legally able to perform the duties of this position?

WHAT NOT TO ASK: What is your maiden name?

WHY NOT: Employers ask this question in order to conduct a background check. The problem is that it potentially relates to two protected categories: marital status and national origin. On the topic of background checks, employers should proceed carefully.

ASK INSTEAD: Have you ever worked under a different name?

WHAT NOT TO ASK: I see you are expecting – congratulations! Do you know the gender?

WHY NOT: Pregnancy is a protected category. Because it is improper for an employer to make a hiring decision based on a candidate’s pregnancy, it is best practice to avoid this topic altogether (even if it is innocently brought up as small talk). It is never appropriate to ask whether the candidate expects to take maternity leave, whether they have childcare arrangements, or whether they will need special accommodations related to their children.

ASK INSTEAD: What shifts are you able to work? This position requires [evening / weekend] shifts; would you be able to work those shifts?

(Note: employers should ask all candidates about their availability, not just women. Any question regarding night or weekend shifts should only be asked if a bona fide requirement or expectation of the position).

WHAT NOT TO ASK: Do you have children?

WHY NOT: As noted above, it is unlawful to deny employment to someone because they have or are planning to have children.

ASK INSTEAD: This job requires frequent travel out of state: is that something you would be able to do?

WHAT NOT TO ASK: Are you married?

WHY NOT: There are very limited circumstances in which this question is relevant to a candidate’s job. Since it relates to a candidate’s marital status, and may even reveal a candidate’s sexual orientation, it should be avoided.

ASK INSTEAD: If the purpose of the question is gauge a candidates non-work commitments, an employer should simply ask whether the candidate can meet the requirements of the job.

WHAT NOT TO ASK: Do you need to take off any religious holidays?

WHY NOT: There is almost never a bona fide reason to ask about a candidate’s religious beliefs. Employers often ask this question – inartfully - as a proxy for asking about a candidate’s availability. The best practice is to ask about the specific requirements of the job and whether they can fulfill those duties.

ASK INSTEAD: This particular position requires weekend shifts: are you able to work those shifts?

WHAT NOT TO ASK: Do you have any disabilities?

WHY NOT: Unless it directly relates to the specific requirements of the position, an applicant’s disability is irrelevant. Since an employer is in the best position to describe the position, and an applicant is in the best position to describe their qualifications, an employer should accurately describe the requirements and ask the candidate whether they can perform those duties.

ASK INSTEAD: The job will require [description]. Can you perform those duties?

WHAT NOT TO ASK: I see you were in the military. What type of discharge did you receive?

WHY NOT: There are two categories of separation from the military: administrative and punitive. Most separations are administrative. This occurs when a veteran completes their service commitments or separates due to some infraction. Administrative separations are characterized as Honorable, General Under Honorable Conditions, Other Than Honorable, or other (Medical Discharge or Entry Level Separation). A punitive discharge usually occurs after a court-martial (a military judicial proceeding) and is characterized as Dishonorable or Bad Conduct. The type of discharge does little to provide context or reason for separation and may implicate other protected categories. For example, a candidate may have an “Other Than Honorable” discharge because of poor behavior, because they were discharged under “Don’t Ask Don’t Tell” legislation prior to 2011, or because of adulty in connection with a divorce proceeding. It should be noted that discharge status may be relevant in some circumstances. This includes hiring employees for government contract work or providing a veteran preference.

ASK INSTEAD: What type of work experience did you receive in the military?

WHAT NOT TO ASK: What was your salary at your last job?

WHY NOT: California passed AB 168 in 2017. The law prohibits employers from asking applicants about their salary history. This includes both compensation and benefits. Specifically, the law states that employers may not “seek salary history information, including compensation and benefits,” nor may an employer “rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.” However, employers may consider salary history where the candidate’s salary is publicly available under state or federal law (i.e., state employees) or where an applicant voluntarily and without prompting discloses salary. Legislation passed in 2018 also confirms that while employers may not ask about salary history, they may ask an applicant about salary expectations.

ASK INSTEAD: What is your salary expectation for this position?

WHAT NOT TO ASK: Have you been convicted or a crime in the last 10 years?

WHY NOT: California passed AB 1008 in 2017. The legislation prohibits employers from asking about criminal convictions prior to making a conditional offer of employment. In practice, this means employers often learn about prior convictions during a post-offer background check. Employers may have legitimate reasons for withdrawing an offer of employment upon discovery of an applicant’s criminal history. For example, certain criminal convictions may be relevant for positions that involve access to prescription medications or that involve working with children. Similarly, employers may have legitimate legal exposure for negligent hiring if they employ individuals with a criminal history in certain positions (such as fiduciaries). Employers who rely on a criminal conviction to withdraw a conditional job offer must conduct an individualized assessment to determine if the conviction and offense is relevant to the job. The employer must also notify the applicant of their preliminary decision, provide a copy of the background report, and inform the applicant of their right to respond before a decision is finalized.

ASK (OR ADVISE) INSTEAD: We require all applicants to submit to a criminal background check after accepting our conditional offer of employment.