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Illegal Interview Inquiries

by | Dec 19, 2020 | Blog Posts, Discrimination

California state and local legislation sets rules for the employment application and interview process.  Even questions that seem harmless may be against the law.

Compensation History

California employers cannot ask job applicants for their prior salary history or relying on that information in making hiring decisions or setting compensation.

Questions seeking a prospective applicant’s salary or benefits at their current or former jobs must be avoided throughout the hiring process and during employment.

Investigative Consumer Reports & Background Checks

Investigative consumer reports typically include information about an applicant’s character, reputation, personal characteristics, and mode of living.  Employers must follow California law relating to criminal history inquiries if criminal history is sought as part of an investigative consumer report (see more below).

To obtain an investigative consumer report, California employers must disclose and obtain the written authorization of the applicant.  Employers must separately provide a “Summary of Rights” under the Fair Credit Reporting Act (“FCRA”) and per the California Civil Code, before the seeking the report.

Employers cannot just immediately act in response to a consumer investigative report.  First, they must give the applicant a copy of the report and the employers intentions, allowing the applicant an opportunity to explain any negative information.

Criminal History

California employers may not ask about criminal history information on job applications and may not ask about or consider criminal history at any time before a conditional offer of employment has been made to an applicant.

If information from a criminal history report is used for employment purposes, an employer must comply with the FCRA and California Civil Code requirements in connection with Investigative Consumer Reports & Background Checks (see above).  And, when conducting a criminal history background check, California employers cannot:

  • include questions that seek the disclosure of an applicant’s conviction history on any job application;
  • ask about or consider the conviction history of an applicant until he or she has received a conditional offer; or
  • consider, distribute, or disseminate information related to certain prior arrests that did not result in convictions, referral to or participation in a diversion program, and convictions that have been sealed, dismissed, or expunged.

Even after an employment offer is made, employers can only consider convictions, not arrests, unless the employee is out on bail pending trial.  Some California cities have their own “ban the box” regulations.

California employers with a rule that automatically bars employment to any applicant who has a record of criminal conviction may violate state and federal guidance where the conviction is not job-related, and the policy has a disparate impact upon a protected class.  Factors to consider in reviewing criminal history are: the nature and gravity of the offense, the applicant’s age at the time of the offense, the number of offenses, the time that has passed since the offense, conduct, and/or completion of sentence, and the relatedness of the offense to the job held or sought.

Credit Checks

A consumer credit report is any written, oral or other communication bearing on an individual’s credit worthiness, credit standing, or credit capacity, which is used as a factor in evaluating an applicant for employment, promotion, reassignment, or retention.  Except for very narrow situation, California employers are generally prohibited from using a consumer credit report for hiring and employment purposes.

The ban on using credit reports for employment purposes does not apply to certain positions and situations, including certain managerial positions, positions with the state Department of Justice, law enforcement, positions for which information in the credit report is legally required to be disclosed, positions with access to confidential/proprietary information, positions with regular access to personal information (like social security numbers, birthdates, and credit or financial account information), positions with regular access to more than $10,000, or positions that include the authority to enter into financial transactions on behalf of the employer.

If one of the exceptions applies and the employer is able to obtain and use the report, there are still restrictions on how the employer goes about obtaining the report.  An employer must comply with the FCRA and California Civil Code notice requirements in connection with Investigative Consumer Reports & Background Checks (see above).

Protected Classes and Characteristics

Both California’s Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act govern the questions that can be asked at an interview.  For instance, questions that may illegally implicate a protected class or characteristic include:

  • National Origin/Religion/Race.  Asking applicants questions like “Where are you from?”, “How long have you lived in the U.S.?”, or “What church do you go to?” can be interpreted as questions about the applicant’s national origin, race, citizenship, or religion.  Similarly problematic is asking which languages an applicant speaks unless the job requires the applicant to speak and/or write a particular language fluently or if knowledge of another language would be beneficial for the position. Asking about an applicant’s hobbies, outside activities, clubs, societies, lodges, or organizations could lead to the applicant disclosing protected classification or characteristic information.
  • Gender.  Asking about an applicant’s gender, gender identity or expression or whether an applicant is transgender, transitioning, or has transitioned, is illegal.
  • Age.  Questions that indirectly seek information about an applicant’s age – like “what year did you graduate high school?” – may be discriminatory.  Employers may ask an applicant whether they are over a certain age if the job has a minimum age requirement.
  • Disability.  Asking about an applicant’s disability, medical history, medications, or workers’ compensation history isn’t allowed.  Employers can ask if an applicant can perform the essential functions of the position, either with or without reasonable accommodation.
  • Citizenship.  Asking about an applicant’s citizenship, unless U.S. citizenship is a legal job requirement, is problematic. This is different than requiring all applicants to verify identity and eligibility to work in the U.S.
  • Marital Status.  Questions seeking information pertaining to parenthood or marital status may be discriminatory, including any that could reveal whether an applicant is married, single, pregnant, or plans to be pregnant in the future.

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Applicants and employees with questions about their own hiring or employment should contact Colby Law Firm.

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