By Laura Maechtlen and Kristen Verrastro

We’ve all been in this situation: you’re trying to get to know someone better, so you ask that person a seemingly innocent question which inadvertently elicits an answer you wish you could have avoided!  If this happens in a social setting it’s unlikely to create a big problem, but if this type of scenario occurs during a hiring interview, what was intended as a friendly or innocent question could turn into a potential liability. 

Employers in California should remember that California’s anti-discrimination statutes include more protected characteristics than federal laws and many other states. Various federal laws prohibit discrimination on the bases of race; color; religion; sex; national origin; citizenship; pregnancy, childbirth, or related medical condition; age , mental or physical disability; and genetic information.  California adds to this list:  creed; ancestry; medical condition; marital status; gender; gender identity; gender expression; and sexual orientation.  Also, California prohibits asking about arrests that did not result in conviction, except you can ask about arrests for which the person is out on bail or on their own recognizance pending trial. 

Additionally, California protects employees and job applicants based on a perception that an individual possesses any of the protected characteristics, or that an individual associates with a person or group that is protected by the anti-discrimination statutes.  As such, to avoid potential liability stemming from California’s expanded statutory protections, it is important to focus your interview questions on the job and its requirements.

Employers in California should avoid these types of seemingly innocuous questions during an interview:

  • Are you married or planning to get married?  Where does your spouse work?
  • What are your plans for a family? Do you have child support obligations?
  • Have you ever changed your name? 
  • When did you graduate from high school/college? Are you a recent graduate?
  • With whom do you live?  Do you live with your parents?
  • When did you serve in the military?  For how long?  How were you discharged?
  • Where were you/your parents born?
  • In what languages are you fluent (unless required by the particular job)? What is your first language?  How did you learn a foreign language?
  • To what clubs or societies not related to work do you belong?  Do you belong to any religious organizations? 
  • Have you ever seen a counselor or psychologist for any reason? 
  • Have you had any medical problems?
  • What is it like living with        ___ (e.g., blindness, a prosthesis, fill-in-the-blank with other visually perceivable disability)?
  • How many days of work did you miss at your last job?
  • Have you ever filed an application for Workers’ Compensation?
  • Have you ever been arrested? 
  • What is your FaceBook (or any social media account) password, or content?  Why don’t you open it up for me right now so we can take a look? 

A good general rule is this: information acquired and requested through pre-employment screening should be confined to what is necessary to determine if an individual is qualified for the position.  

Happy hiring!