At a time when it is easy to find personal information about most people online, it might seem like any question is fair game for a job application. However, while many aspects of job applications are left to the discretion of employers, there are also things California law prevents employers from asking applicants about.
To comply with the California Fair Employment and Housing Act – and avoid any claims of discrimination during the hiring process – employers should be cautious when asking any question of job applicants that relates to their membership in a protected class such as race, age, sex, gender, disability and many others.
Rule of thumb: Each application question should be related to a person’s ability to perform the job.
It is a good idea to review your job applications to ensure that everything you are asking applicants will actually help you determine whether that person is qualified to perform the job. The Department of Fair Employment and Housing recommends that employers only ask applicants about things that are essential to their qualifications to do the job, with or without reasonable accommodations.
For example, you should never ask applicants to state their race, as this is never an essential qualification to perform a job. For other protected characteristics, there may be legitimate reasons for asking for certain information, but you should take care to not ask for more information than is necessary. Here are several examples:
- Age: You may ask applicants whether they are at least 18 years old (or the legal age for performing the work in question), but you should generally avoid asking applicants for their exact age, unless it is essential for the job in question.
- Disability: You may ask applicants whether they would be able to perform the essential functions of the job without or without accommodation, but you should not ask applicants general questions about their physical or mental health.
- Name: You may ask applicants for any other names they have used in the past to verify their work history, but you should avoid asking for an applicant’s “maiden” name, as this could be viewed as asking someone to indicate their marital status.
- National origin: If foreign language ability is a qualification for the job, you may certainly ask employees about language ability, but you may not ask applicants about their ancestry or nationality. For example, you can ask if someone is fluent in Spanish, but not how they acquired this fluency.
- Sex, gender and gender identity: Unless a person’s biological sex is a bona fide occupational qualification for a job – for example, a job for a female model or female actor – you should avoid asking applicants any questions regarding their sex, gender or gender identity.
Beginning January 1, new laws will also prevent California employers from asking applicants questions relating to salary history and criminal history. We’ll discuss these new restrictions in upcoming blog posts.