Share on Facebook
Share on X
Share on LinkedIn

By Ted J. Schneider, Esq.

Most employers know that their workers are protected from discrimination while they are employed.  Surprisingly, some are unaware that prospective employees are protected throughout the application and hiring process as well.  Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Age Discrimination in Employment Act of 1967, as well as other federal and state laws, are all applicable to prospective employees.  Therefore, employers must be extremely careful about the questions they ask individuals applying for a position.

Employers should avoid asking any questions that might give a prospective employee reason to believe he or she was not selected for a position due to discrimination.  Employers should not inquire about an applicant’s race, unless it is for an Equal Employment Opportunity Commission purpose (which should be noted).  Employers should not ask about an applicant’s citizenship status, and instead should inquire as to whether the individual has authorization to work in the United States.

Employers should also be sensitive to discrimination based on gender and sexual orientation when conducting interviews.  Employers should never ask gender-related questions or anything regarding pregnancy or children.  Avoid asking a prospective employee about marital status or religion as well.  An employer might be concerned that a prospective employee will miss work due to young children or religious holidays.  However, if the employer is concerned about an applicant’s attendance, the interviewer should only ask about prospective employee’s attendance records at previous places of employment.  If the employer already knows a candidate has children, do not ask if the prospective employee has made provisions for child care.

Individuals with disabilities are protected under federal and state law.   Employers must consider and accept applications from applicants with and without disabilities equally.  An employer should never ask about a disability.  All that matters is that the individual is able to perform job duties, with or without reasonable accommodation.  The ADA prohibits questions that are likely to elicit information about a disability.  For example, never ask if a candidate has or has ever had a disability, or inquire about the nature of an apparent disability.  Do not ask a candidate if he or she is taking prescription drugs or medications. 

California prohibits discrimination based on criminal convictions, so employers should be aware not to ask about an applicant’s criminal history without seeking advice from counsel regarding the circumstances under which such inquiries are permitted.  Also, in California, employers may not ask a candidate about his or her credit history or obtain a consumer credit report, other than in certain narrowly-defined circumstances, and only after specific disclosures and procedures have been followed.

If you are a business owner, it is in your best interest to put together a list of interview questions for prospective employees and to review that list with an experienced attorney.  You should also be sure that all of the parties conducting interviews are aware of the rules relating to interview questions and abide by them.  If you would like assistance creating a set of proper interview questions, job applications and procedures for your business, the experienced labor law attorneys at Schneiders & Associates, L.L.P. are available to advise you.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.