Age Discrimination in Employment Act

Seyfarth Synopsis: Recent California legislation, including laws banning questions about salary history and criminal convictions, has bought new interview jitters for employers. These new laws, along with the Fair Employment and Housing Act’s prohibitions against questions going to an applicant’s protected status, confirms the point that there is such a thing as a “bad interview question.” In this ever-changing legal landscape, it is important for California employers to know what they can and cannot ask candidates in a job interview.

Although Michael Scott’s fictional character in The Office would have us believe there is no such thing as a “bad question,” that expression holds less true in California today than ever. California’s legislative updates in the last year have made job interviews more perilous than ever for the unwary employer.

The Legislature has recently introduced prohibitions on salary history and criminal conviction questions for certain employers. What is more, the FEHA prohibits questions like Michael Scott’s zinger, “Why are you the way that you are?”—a question that could go to various protected statuses, such as race, national origin, sex, nationality, and gender.

While such restrictions seem straightforward, implementing them is not always a no-brainer. Indeed, according to one survey, one in five hiring managers admitted that they have asked a question in a job interview only to find out later that it was illegal to ask.

So if you are looking to recruit for a temporary role, or hiring to fill the next coveted regional manager role at Dunder Mifflin, certain interview questions can have you breaking a sweat in California in 2019:

  1. Have You Ever Been Convicted of a Crime?

What used to be a common check-the-box question on employment applications is now illegal to ask before the employment offer stage. In late 2017, California joined several states in introducing “ban the box” laws to reduce barriers to applicants in the pre-hiring stage. Under AB 1008, California employers with more than five employees now must not

  • include on any job application questions that seek the disclosure of an applicant’s conviction history,
  • ask about or consider the conviction history of an applicant until he/she has received a conditional offer, or
  • consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions when conducting a conviction history background check.
  • San Francisco’s version of the “ban the box” legislation provides even greater protections to job candidates and includes stiff penalties for violations.
  1. How Much Do You Currently Make?

With the passage of AB 168, effective January 1, 2018, California employers must not ask job applicants for “salary history information” or rely on that information in deciding whether to offer a job and how much to pay. But if the applicant voluntarily discloses salary history, the employer may consider or rely on that information in setting salary so long as prior salary is not the only factor justifying any disparity in pay.

Under recent legislation clarifying the scope of AB 168, employers can ask about an applicant’s salary expectations for the position.

  1. Where Are You From?

The innocent icebreaker questions, “Where were you born?” or “Where are you from?” or “How long have you lived in the U.S.?” can land employers in hot water. Such questions, though seemingly offhanded, can be interpreted as questions about the applicant’s national origin.

Also, California’s Labor and Workforce Development Agency has made it clear that the state’s labor protections apply to all employees—regardless of their immigration status. Thus, you should stay clear of questions about a candidate’s citizenship (unless U.S. citizenship is a legal job requirement). You can, however, ask whether the applicant has a legal right to work in the United States, so long as you do not do so on a discriminatory basis.

  1. When Did You Graduate High School?

Questions about a candidate’s age are prohibited under both California’s FEHA and the federal Age Discrimination in Employment Act. Thus, employers should stay away from questions that could reveal a candidate’s age, like “What year did you graduate high school?”

You may ask a candidate’s age, however, if the job has a minimum age requirement, for example, if it involves serving alcohol.

  1. Are You Married?

Any questions related to parenthood or marital status are off limits. Prohibited questions include whether an applicant is married, pregnant, or plans to be in the future. Even the innocuous question, “What does your spouse do?” should be avoided as it could be seen as a round-about way of getting to the candidate’s marital status. It’s perfectly OK, though, to ask such questions after the candidate has been hired.

Workplace Solutions:

You may find yourself at an interview in the predicament Michael Scott describes best, “Sometimes I’ll start a sentence and I don’t even know where it’s going. I just hope I find it along the way.” Often people develop an easy rapport at an interview, making it hard to “unsay” questions—even illegal ones. Take note of the following guidelines to ace that next interview so you can indeed be the “World’s Best Boss.”

  • Read the fact sheet developed by California’s Department of Fair Employment and Housing, which offers guidance on questions employers can ask applicants.
  • To the extent feasible, prepare questions in advance, to help avoid drifting off into forbidden territory.
  • Train job interviewers and HR personnel on what interview questions are illegal and improper.

If you have any questions about this guidance or about illegal pre-hiring questions in California, feel free to contact your favorite Seyfarth attorney.

With the 2016 hiring season well under way, California employers are well advised to reconsider their use of criminal records in making hiring decisions.  Although employers are probably aware of “ban the box” and other legislative initiatives, they may not be as familiar with the liability exposure they may create by when using blanket policies to reject applicants because of their criminal histories.  On February 19, 2016, the California Department of Fair Employment and Housing (“DFEH”) announced proposed regulations governing the consideration of criminal history in employment decisions, which will enumerate limitations to the use of criminal history.

According to an EEOC survey, 92% of employers subject at least some candidates to criminal background checks.  Since issuing guidelines on the use of criminal records in 2012, the EEOC has embarked on an aggressive campaign against employer use of criminal records in employment prescreening.  While some EEOC lawsuits have failed, others have resulted in multimillion dollar settlements, such as a $3.13 million prelawsuit settlement with Pepsi.  Each time, the EEOC has focused on whether the employer’s reliance on criminal records has an adverse impact on applicants with protected characteristics, such as race, national origin, or disability.  Of particular note to California employers, the California Department of Fair Employment and Housing (“DFEH”), has recently become more active in pursuing individual and class-based claims, under the California Fair Employment and Housing Act (“FEHA”), California’s counterpart to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act (“ADA”).

In recent years, we’ve seen individual and class actions asserting indirect discrimination, or “disparate impact” discrimination, primarily involving race and national origin.  Because about  one-sixth to one-fourth of individuals with a criminal record also have a diagnosable mental disability, we anticipate increased litigation by job applicants with disabilities who have a criminal record.  The disabled community has faced historical exclusion from the workplace, and a disproportionate number of them have criminal histories.  And, as mentioned, the DFEH has now become more active in initiating such cases.  Thus, when employers adopt across-the-board hiring practices that reject candidates with criminal records, they may be exposing themselves to lawsuits under the ADA or the FEHA.  This risk is especially prominent in California, because the FEHA defines “disability” much more broadly than the ADA does.  California law defines a disability as any mental or physiological disorders that limit major life activities, as opposed to the ADA definition, which requires that the condition substantially limit major life activities.

On the other side, employers have justifiable reasons for hiring practices that consider criminal background.  Employers must guard against theft and fraud and try to avoid liability for  negligent hiring.

Employers thus may perceive a dilemma of (a) not considering criminal histories at all or (b) facing potential discrimination suits.  Though there are as many solutions as there are questions, the best practice has always been to ensure that a criminal history is not the sole reason to exclude a candidate, and to use it in conjunction with other business reasons.  Each candidate’s qualifications deserve individualized attention, with an awareness of potential disability issues. Employers would also be well advised to structure narrowly tailored hiring policies to ensure that they prevent not only racial discrimination, but disability discrimination.  Categorical exclusions based on a criminal record invite a host of potential risks of litigation under the ADA or FEHA that risk-averse employers will want to avoid.

Edited by Michael A. Wahlander.