According to a CNBC survey 35% of employees have been asked illegal questions during interviews. Questions regarding race, religion, national origin, marital status, health are off-limits, as are many other types of questions both HR and prospective applicants may not be aware of. 

The California Fair Employment and Housing Act prohibits discrimination against job applicants and employees on the basis of: 

  • Age
  • Race
  • Color
  • Religion
  • Marital status and questions related to pregnancy, childbirth, breastfeeding, and related medical conditions)
  • Gender (including gender identity and gender expression)
  • Sexual Oriention
  • National origin/ancestry
  • Mental and physical disabilities
  • Medical conditions
  • Genetic characteristics
  • Military and veteran status

In addition to the list above, employers in California sometimes sneak in the following seemingly harmless, but unlawful interview questions.

1. Criminal History

California has joined other states across the country in prohibiting prospective employers from asking questions related to an applicants conviction history. Under AB 1008, employers with over 5 employees cannot include on job applications questions asking about an applicant’s conviction history or ask applicants about prior convictions until he/she has received a conditional offer. 

2. Salary History

In 2018, with the passage of AB 168, employers also cannot ask applicants about their salary history information. If the applicant chooses to disclose their previous salaries, an employer is allowed to consider that information in order to decide on what salary to pay, so long as previous salary history is not the only reason they are using to decide on a disparity of pay. Under AB 168, employers can ask about what salary an applicant expects

3. National Origin

Questions that are seemingly harmless such as “Where were you born?” “Where are you from?” or “How long have you lived in the U.S.” can be interpreted as asking about national origin, which is illegal. Employers can ask whether an applicant has legal status to work in the U.S., as long as they are not doing so to be discriminatory. 

Questions like “Where do you live” and “How far will you commute?” are often asked, but could be interpreted as inquiring about an applicant’s national origin or race as well.

4. Religion

Questions regarding one’s religion are also illegal. Employers cannot ask what holidays candidates celebrate or if they’ll need time off for certain holidays or days during an interview. 

Medical Issues

Under FEHA, employers are prohibited from discriminating based on an employee’s medical issues or health issues. Questions like “Do you smoke or drink?” or questions related to an applicant’s health history, mental stability, injuries or medical issues should be avoided.

It’s okay for employers to ask if the potential employee is able to perform essential tasks in their job. It’s also acceptable for employers to ask questions related to physical fitness, medical condition, or medical history if it is directly related to the job position.

Employers may also tell applicants that their offer is conditional on passing a fitness test or job-related mental or physical exam, as long as it is required of all applicants on a non-discriminatory basis and is directly related to the job. Drug tests is generally permitted if required of all job seekers after they have a made a conditional job offer.

The main idea is that employers cannot ask general questions regarding an applicant’s medical history, ask them to take medical or psychological exams at the pre-offer stage, ask about substance addiction history, on the job injuries at their prior workplaces, prior worker’s compensation claims, how often they were absent due to illnesses or doctor’s appointments, or require genetic testing/ask about an applicant’s genetic makeup. 

Questions like, “Have you ever been hospitalized?” “Are you currently on worker’s compensation or have you ever filed a claim?” “What prescription medications are you taking?” are all illegal. 

6. Age

Questions about age are prohibited in California’s FEHA laws, so any questions that could reveal a candidate’s age, such as “When did you graduate high school?” are restricted. If the job has a minimum age requirement, such as serving alcohol, then the employer is allowed to ask about age. 

7. Marital Status

Questions related to whether or not the applicant is married or has children are also illegal. This could include seemingly innocent questions like “What does your spouse do for a living” “Do you have children at home?” or “Do you plan to get pregnant in the future?” are prohibited. Employers are allowed to ask these questions after an applicant has been hired, just not during the interview process. 

8. Involvement in a Lawsuit

If you’ve sued or joined a class action lawsuit against a previous employer, your potential employer cannot base their decision not to hire you based on your previous involvement in a lawsuit. Retaliation laws exist so that employees feel comfortable bringing forth claims if their employer had done something illegal. 

In general, in order to comply with California law, employers should only be asking interview questions directly related to the job-seeker’s qualifications for the job.  

Question about a work issue?

If you believe you have a claim against a current or former employer, it’s important to discuss the situation with an experienced attorney who can give you a comprehensive look at your options. Contact us today at (949) 936-4001 or to talk about your employment issue.

Whitehead Employment Law is a premier firm with a wealth of legal talent dedicated to labor and employment law. We have settled and tried cases winning millions of dollars in awards for clients whose employers have violated California labor laws.  Many of these types of situations are ideal for class action treatment. We take most of our cases on a contingency basis, which means we don’t get paid unless we win the case for you.

Contact us at Whitehead Employment Law today at 949-936-4001. Consultations are free and confidential.