The recruitment and interviewing process can be stressful for all parties involved. While employers are focused on bringing on the best new talent by asking the right questions, the interviewee is hoping to make the best first impression with their answers.
While it is important to identify the right fit that adds value to your team by asking thorough questions, there are many different sensitive topics that employers need to approach with caution when conducting interviews. To help you avoid Human Resources (HR) violations and other potential legal conflicts, we highly recommend leaving these 5 interview question topics out of your interview process.
1. Gender & Sexual Orientation
In today’s employment landscape, topics surrounding gender and sexual orientation are sensitive and can lead to disagreement and grievances. But avoiding controversy is not the only reason employers need to not ask questions about gender and sexual orientation. According to Title VII of the Civil Rights Act, it is illegal to ask discriminatory questions during the interview process about the applicant’s gender, race, age, national origin, religion, or other non-job-related bases. Employers need to stray away from inquiries or comments that bring into question a candidate’s gender identity, expression, or whether they are transgender, transitioning, or have transitioned. These questions can easily be interpreted as discriminatory and biased.
The U.S. Equal Employment Opportunity Commission prohibits religious discrimination in the workplace. As such, any type of question that relates to a candidate’s religious affiliation or belief – such as “What religious holidays do you observe?”, “Do you attend church?” – should not be asked during an interview. These types of questions, much like the other questions we will go over in this article, are generally non-job-related and will cause problems under scrutiny.
Companies that identify as a religious association, corporation, society, or educational institution are exempt from federal employment discrimination laws related to religion. So unless religion is a bona fide occupational qualification for the position, this topic should not come up in your interview.
Although there are rare circumstances when sex/gender is a bona fide occupational qualification for a particular job, it’s never a good idea to ask. If you think you have an exception to the general rule prohibiting these types of questions, please consult with your legal counsel.
3. Family/Geological Background
You may think the questions “Where were you born?”, “Where are you from?”, or “How long have you lived in the U.S.?” are innocent icebreaker questions; however, asking these questions in an interview setting can put employers in hot water. These questions could be interpreted as questions about the applicant’s ethnicity or immigration status. According to California’s Labor and Workforce Development Agency, the state’s labor protections apply to all employees — regardless of their immigration status. As such, employers should avoid inquiring about a candidate’s citizenship. Employers are, however, allowed to ask whether the applicant has a legal right to work in the United States, as long as you do not do so on a discriminatory basis.
In addition to ethnicity and geological topics, all questions related to marital status, parenthood, and family genetic information – such as “Are you married?”, “Do you plan to have children anytime soon?”, or “Do you have any disorders or diseases that we should know about?” – are strictly off-limits. Even a question like, “What does your spouse do?” should be avoided as it can be seen as a round-about way of getting information on the candidate’s personal life.
Under California’s Fair Employment and Housing Act and the Federal Age Discrimination in Employment Act, questions about a candidate’s age are prohibited during the interview process. Employers should stay away from questions that could reveal a candidate’s age, like “What year did you graduate high school?”, “How old are you?”, “How long have you been working?”, or “When were you born?”. Inquiring about a candidate’s age can lead to speculation of discrimination, which is illegal. The only circumstance it is acceptable for an employer to inquire about a potential candidate’s age is when the job has a minimum age requirement, like jobs that involve serving alcohol.
5. Financial Background
According to Assembly Bill 168 (AB168), which has been in effect since January 1, 2018, employers must not ask job applicants for “salary history information” or rely on that information to decide whether to offer a job and how much to pay. Although employers are not permitted to ask those types of questions, if an applicant voluntarily discloses his/her salary history, the employer may consider or rely on that information in setting salary, as long as the prior salary is not the only factor justifying any disparity in pay. Recently, legislation has clarified the scope of AB168, allowing employers to ask about an applicant’s salary expectations, not history, for the position.
Additionally, personal questions regarding financial status should never be asked during an interview. Questions like “What kind of car do you drive?” and “Do you own a home?” can be interpreted as an inquiry into the relationship between poverty and some minorities.
Employers must remain alert and cautious of the types of questions they are asking to avoid significant consequences with HR and the law. Before going through an interview, take the time to reassess and reevaluate the current questions on your roster to make sure you’re asking the right things. Remember, if your question is not related to the job itself or the job performance, it should not be asked. We recommend employers consult with their legal counsel whenever uncertainties regarding interview questions come about. If you need any assistance navigating your interview process, please contact Hackler Flynn & Associates.
DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.
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