Solo & Small Firm

7 Topics Not to Discuss with a Job Applicant

By Julie Brook, ESQ.

When it comes to job applications and pre-employment interviews, there are certain topics that are off limits. Here are seven topics to stay away from.

1. Age. Employer policies that use age as a hiring criterion are generally unlawful under the Fair Employment and Housing Act (FEHA) (see Govt C §12940(a)) and the Age Discrimination in Employment Act of 1967 (ADEA) (29 USC §§621–634). Employers must be careful about inquiries seeking information that could be used to pinpoint an applicant’s age.

2. Marital Status. Inquiries about marital status may be made only if “pursuant to a permissible defense.” 2 Cal Code Regs §11056(a). That is, the inquiry must be made for a reason that’s included among certain affirmative defenses to employment discrimination, such as a bona fide occupational qualification, a business necessity, or conformance to applicable security regulations. So, if it’s for business-related reasons (e.g., to enable the employer to check the applicant’s past work record), applicants may be asked whether they’ve ever used another name. 2 Cal Code Regs §11056(b). It’s also lawful to ask whether an applicant has a spouse who’s presently employed by the employer, but this information can’t be used as a basis for an employment decision except in connection with an anti-nepotism policy.

3. Pregnancy. Under FEHA, the protected category “sex” includes pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. Govt C §12926(r). An employer must not discriminate against female applicants because they are, or perceived to be, pregnant. See 2 Cal Code Regs §11039(a)(1)(A). Discrimination against a female employee because of the possibility she could become pregnant must be treated the same as gender-based discrimination when given as the basis for refusal to hire. Automobile Workers v Johnson Controls, Inc. (1991) 499 US 187. The Pregnancy Discrimination Act (42 USC §2000e(k)) also protects against the refusal to hire a woman who was recently pregnant, a class distinct from the unprotected class of being a new parent. Neessen v Arona Corp. (ND Iowa 2010) 708 F Supp 2d 841. Rejection because an applicant is or might become pregnant is allowed only when the employer can show that such individuals would be unable to safely and efficiently perform the job in question and that the essence of the business operation would otherwise be undermined. 2 Cal Code Regs §11010(a). See Govt C §§12926(r), 12940.

4. Disability or Medical Condition. An employer subject to FEHA (i.e., one employing five or more persons) may not require any medical or psychological examination of a job applicant, or make any inquiry of an applicant on whether the applicant has a disability or medical condition or its nature or severity. Govt C §12940(e)(1). See also 29 CFR §1630.13. This includes asking the applicant whether he or she has ever been treated for alcohol problems. However, an employer may make pre-employment inquiries into an applicant’s ability to perform job-related functions and may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, he or she will be able to perform job-related functions. Govt C §12940(e)(2); 29 CFR §1630.14(a); 29 CFR pt 1630, App §1630.14(a).

5. Religion. In California, an employer may not refuse to hire a person based on that person’s religious creed. Govt C §12940(a). See Govt C §12920. “Religious creed” is defined to “include all aspects of religious belief, observance, and practice.” Govt C §12926(p). Nor may an employer make any inquiry that expresses, “directly or indirectly, any limitation, specification, or discrimination as to … religious creed” unless the inquiry is job-related. Govt C §12940(d); 2 Cal Code Regs §11016(b)(1). Pre-employment inquiries about an applicant’s religion may also constitute discrimination under Title VII. See 42 USC §2000e–2(a). The EEOC’s regulations caution against the use of interview questions to determine an applicant’s availability to work specific hours, because such inquiries tend to have an “exclusionary effect on the employment opportunities of persons with certain religious practices.” 29 CFR §1605.3(b)(2).

6. Salary History. An employer may not rely on the salary history information of an applicant as a factor in determining whether to offer employment to him or her, or what salary to offer. Lab C §432.3(a). Thus, an employer may not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment. Lab C §432.3(b).

7. Criminal History. It’s an unlawful employment practice for an employer with five or more employees to include on any application for employment questions that seek the disclosure of an applicant’s conviction history or inquire into the conviction history of the applicant, until after the employer has made a conditional offer of employment to the applicant. Govt C §12952(a).

Keep in mind that the fact that the applicant volunteers protected information doesn’t eliminate the risk of a claim if the employer decides not to hire the applicant. Whenever protected information is offered (e.g., “I have four children”), the interviewer should quickly steer the discussion away, with a statement such as “I’d rather not discuss that with you; our company selects employees solely on their qualifications.”

For more on what can and can’t be asked of a job applicant, check out this Employment Inquiries: What Can Employers Ask Applicants and Employees? (DFEH-161) and CEB’s Advising California Employers and Employees, chap 1.

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