When employers interview job candidates, they appropriately focus on questions that will obtain information they need to hire the right person. However, they must also be sure that they do not ask questions that are prohibited under California law and that can potentially lead to lawsuits including those for discrimination.

California employers with five or more employees are covered by the California Fair Employment & Housing Act (FEHA) which prohibits discrimination based upon age, ancestry, color marital status, medical condition, national origin, physical disability, religion, sex or sexual orientation, and military status. (Employers with fewer than five employees should also avoid these questions as best practices.) This includes discrimination based upon the belief that someone falls under a protective class or is perceived as being a member of such a class. Interview questions that intend to or otherwise do derive information regarding these protected categories are unlawful.

Prohibited Questions under FEHA

The following are questions that employers cannot ask of job candidates under FEHA and under California law:

National Origin

• Where did you live growing up (national origin or race)?
• What language is your accent from?
• Are you a US Citizen?
• Where are your family or ancestors from?

Race

• Questions about complexion or hair or color of eyes or other questions that could be viewed as being used to derive someone’s race.
• Requests for a photo as part of the application process.

Religion

• Questions about someone’s religion or religious beliefs. For example, do you go to church or what holidays do you celebrate?

Age

• How old are you?
• When did you graduate from high school or college?
• Any other questions that might provide a hint regarding a candidate’s age including that they are over 40. (For example this would include questions such as if the candidate is a “digital native” which is a subtle inquiry regarding someone’s age.)
• Do you think you would have a problem working with people with an age gap between yourself and employees?
• How long do you plan on working or when do you plan on retiring?

Marital Status or Sexual Orientation

• Are you married?
• Are you pregnant?
• How many children do you have?
• Will you be able to get day care coverage while working?
• How old are your children?
• What does your wife or husband or partner do for a living?

Disability

Questions regarding a job candidate’s ability to perform duties in a job description are permitted so long as they are tied to job requirements and business necessity. For example, while an employer cannot specifically ask a job candidate if they have a disability, they can ask if they can perform the job requirements presented to them, with or without accommodation. Otherwise, questions about an employee’s health or whether an employee has a disability, or other questions that would tend to require an employee to disclose a disability, are prohibited.

Drug Use or Criminal Record

• While employers could ask if employees use illegal drugs, they cannot ask if a candidate has used cannabis.
• Similarly, employers cannot ask questions about an employee’s arrest record.

Salary History

Employers cannot ask questions that inquire about a job candidate’s salary history. However, questions regarding salary expectations are permitted.

Other Questions To Avoid

Other topics that should not be asked include questions about a candidate’s clubs, societies and lodges, as well as questions regarding military service or type of discharge.

Stick to the Script

The above questions and topics typically come up during the point of the interview when an employer may be too comfortable with the candidate and conversation may shift to small talk or goes off script. Therefore, it is important that the interviewer stick with a list of questions planned in advance and not inadvertently drift off into questions that are not work related, or as discussed above are unlawful.

It should be noted that these types of questions should also not be asked on the employment application.

Should you have any questions regarding questions that can or cannot be asked of job candidates or other employment law concerns, contact employment attorney Scott Liner at [email protected] or set up a consultation with Chase Law Group today by calling 310-545-7700.