Hiring managers and Human Resources are experiencing legal restrictions on interview questions they can and cannot ask. Asking formerly, innocent questions can now cause many of these professionals to work through legal issues when interviewees file complaints against their company.
Knowing these legal restrictions and staying ahead of inappropriate questions is important with today’s employment laws. Even if questions are asked innocently, if an interviewee knows their rights, you can easily be headed down a path of non-compliance by a simple form filed by an upset interviewee.
Here is a list of six areas you need to know to avoid asking the wrong question:
AB 168 and AB 2282: After California passed AB 168, employers were banned from asking about current or past salary history, however a loop hole that became law with AB 2282, is that an employer may ask the interviewee about their salary expectations for the position. If an interviewee volunteers information about their past salary history, the employers cannot use this information alone, to determine setting a salary offer.
AB 1008: Employers cannot ask an interviewee about prior arrests and convictions or even ask about arrests, convictions or trials that did not lead to a conviction. During the interview process, an employer needs to focus exclusively on the employee. An applicant’s criminal history can only be considered after the employer has made a conditional offer of employment. Even after obtaining the criminal history, an employer must not deny an applicant solely based on the criminal history of that person and must perform an individualized assessment.
Age Bias: Asking interview questions about an interviewee’s age or date of birth is illegal. The only exception is to ask if they are under the age of 18. Refrain from even asking when the applicant graduated from high school.
Gender, Race, Sexual Orientation and Religion: Best practices have always recommended staying away from these questions and to avoid any questions which may indirectly attempt to gain information in these areas. Asking for a photo included in a resume can also potentially be means for a complaint. SHRM published the following:
“The California Fair Employment and Housing Act (FEHA) prohibits any non-job-related inquiries of applicants or employees, either verbally or through the use of an application form, that express directly or indirectly a limitation, specification or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation, or any intent to make such a limitation, specification or discrimination.”
Labor Protections: Avoid any questions around immigration or citizenship status, however it is permissible to ask whether the interviewee has a legal right to work in the US, only if you do not use this information to discriminate against them. Questions asking about location background or how long they have been in the US are also discriminatory questions and should be avoided.
Marital Status: Marital status is protected by the California Fair Employment and Housing Act (FEHA) and protects the interviewee from any questions based on martial status or parenthood. Refrain from questions about pregnancy, marriage, children or future plans.
If you are planning to hire soon, be aware of the interview questions you can and cannot ask. Furthermore, if you need to qualify an interviewee and want to make sure you are getting a good addition to the team, consider using a staffing agency. Ensure that they fully vet candidates in the screening process to avoid any legal complications prior to hiring them.