Many California employers are aware that there are limits on the types of questions you can ask job applicants and/or current employees who are interviewing for a new position. For example, it is unlawful to ask a question that could reflect bias based on race, color, age, gender, religion, gender affiliation, or any other protected status. This means an interviewee cannot be questioned about their religious beliefs, marital status, plans for a family, or sexual orientation. Furthermore, hiring decisions cannot be based on stereotypes or assumptions about a person’s protected status. While this may seem hard to prove, plenty of lawsuits by disgruntled applicants / employees have been brought against employers on this very premise. As a business owner in California, it is crucial that every one of your employees who are involved in the hiring process is aware of these boundaries before any interview takes place.
What does the EEOC have to say about interview questions? The EEOC’s Prohibited Employment Policies/Practices guidelines clearly state that “[a]s a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.”
What exactly does this mean? Let’s look to a recent court decision for guidance…
In the case at hand, the Court analyzed the myriad of complications that can arise when an employer asks “prohibited” questions.
The facts are as follows: A 65-year-old man applied for a senior management position. During his interview, the company president shared that he was looking for an employee who would stay 10 to 15 years and asked the applicant his age. The applicant responded that he was “up in years” and in good physical condition. Next, the president asked whether the applicant was “capable of withstanding the vigor of the position.” The company chose not to hire him, and, perhaps predictably, the applicant filed a failure-to-hire age discrimination lawsuit under the federal Age Discrimination in 
Employment Act (ADEA).
In a win for employers, the court ruled in the company’s favor, noting that the circumstances of the applicant not being hired failed to give rise to an inference of age discrimination. In its analysis, the court observed that the company employed workers of similar age or older than the applicant, and that the candidate who was ultimately hired was only a year younger than the disgruntled employee.
While the outcome was positive for the employers, businesses would be well-advised to steer clear of asking any questions that could potentially touch on a protected status during the interview process. For additional guidance on this issue, contact experienced business lawyer Drew E. Pomerance today.
