Does Your Hiring Team Know the Interview Dos and Don’ts?

According to a CareerBuilder survey, one in five employers has inadvertently asked an illegal interview question without realizing it. Your hiring team must be trained on appropriate interview questions and criteria, as even innocent questions can lead to discrimination claims. Let’s test your knowledge: can you spot the problematic questions below?

A. “I also attended that school. What year did you graduate?”
B. “Do you have any children or plan to someday?”
C. “Will you now or in the future require employer sponsorship (for example, H-1B visa status) to work legally in the United States?”
D. “What are your salary expectations for this position?”
E. “Can you pull up your Facebook profile for us to review?”

The Problematic Questions

If you answered that A, B, & E are problematic, you are correct, but let’s discuss why. These questions may be viewed as related to protected classes or activities. If you choose not to hire a candidate after asking one of these questions, they may claim you discriminated against them based on their protected status. When asking candidates questions, always make sure that they tie back to the job responsibilities and qualifications (i.e., job-related questions).

While Question A may have an innocent intent (maybe the interviewer is curious if they attended school with the applicant), asking someone what year they graduated can reveal information about their age, a protected class for those aged 40 and over.

Employers should also avoid any questions about marital status, pregnancy, children, childcare responsibilities, and family planning (Question B), which may lead to discrimination claims based on protected categories like pregnancy, gender, and marital status.

Finally, Question E is also unlawful. In California, employers are prohibited from requiring or requesting that applicants or employees disclose their social media accounts’ usernames/passwords, access social media in the employer’s presence, or divulge information related to their social media accounts, such as Facebook, LinkedIn, Instagram, etc.

The Permissible Questions

While questions C & D are not problematic questions, careful wording is still critical.

Question C is allowed because employers are not legally obligated to sponsor work visas, so they may filter out candidates who require sponsorship.

However, employers should not ask in an interview whether the candidate is a U.S. Citizen or for their country of origin. Also, once you have hired someone, do not require specific work authorization or identity documents – employees can present any of the acceptable documents listed in Form I-9.

And, while it is permissible to ask about an applicant’s salary expectations for a role, that is, what they would like to or are hoping to earn (Question D), California employers generally cannot ask questions regarding an applicant’s salary history. This means your hiring team should not ask an applicant what they earned in a previous role, or any information about their prior benefits packages.

Other Areas of Concern

Most employers should also avoid questions on applications or in interviews about:

• Criminal history (i.e., cannot inquire into criminal history until after making a conditional employment offer)
• Prior cannabis use
• Credit history
• Social security numbers

California employers are also prohibited from stating that applicants must have a valid driver’s license in any job advertisement, posting, application etc. unless: (1) the employer reasonably expects driving to be one of the job functions for the position, and (2) the employer reasonably believes that satisfying the job function using an alternative form of transportation (walking, biking, taxi, etc.) would not be comparable in travel time or cost to employer.

Additional Tips for Your Hiring Team

One way to assist your hiring team is by drafting a clear and compliant job description for each position you are hiring for, so interview questions can be focused on job duties and qualifications.

It is also a good idea to create interview question templates and checklists, so your hiring team can follow a consistent, compliant script.

Finally, ensure that your hiring managers are sufficiently trained on California’s hiring dos and don’ts, as well as protected classes under the Fair Employment and Housing Act.

Need to refresh your hiring process? CEA members can access our comprehensive Recruiting and Hiring Toolkit here to get started.