Hiring is key to any organization’s expansion. As L. Ron Hubbard wrote in his article “GROUP SANITY,” “Letting people INTO the group at large is the key to every great movement and bettered culture on this planet. . . . Thus inclusion is a major point in all great organizations.”
Yet screening and qualifying job candidates for hiring can be no easy task. Whether in the written application process or in interviews, an employer must steer clear of discriminatory questions and topics throughout.
Of course, some applicant deportment warrants quick, legitimate rejection. According to a 2016 CareerBuilder nationwide survey of more than 2,500 hiring and human resource managers, the most common inappropriate candidate behaviors were acting dishonestly, behaving arrogantly, dressing inappropriately, cursing, and answering a cell phone or text mid-interview. Other survey-reported disqualifications included removing a family photo from the interviewer’s desk and stuffing it into the candidate’s purse; yelling that the interview was taking too long; singing responses to the interviewer’s questions; and rubbing on foot lotion mid-interview.
Although it may be tempting to inquire in detail about the prospect’s mental health history when exhibiting such bizarre behavior, federal and state law commonly prohibits any non-job-related inquiries, either verbally or through a job application form, that express a limitation, specification or discrimination for or against any so-called “protected class.”
A protected class refers to an individual’s characteristic protected from employment discrimination laws. The U.S. Civil Rights Act of 1964 was the first to prohibit certain employment discrimination nationwide, specifically on the basis of race, color, religion, sex or national origin. In the ensuing decades—and depending on the size of the business and which of the fifty states it is in—the number of distinctive individual features on which a company generally cannot base a hiring decision has more than doubled, including but not necessarily limited to ancestry; physical or mental disability; medical condition; pregnancy; marital status; age (40 or over); sexual orientation, identity or expression; genetic information; and military and veteran status.
As inappropriate discriminatory inquiries may be either direct or indirect, an interviewer must be well educated and experienced in framing data requests in a neutral manner. This is perhaps no more important than in California, safely regarded as home to some of the most stringent workplace laws and regulations in the nation. Prohibited questions from a current fact sheet from that state’s Department of Fair Employment and Housing (DFEH) include but are not limited to the following:
- Maiden name
- Questions regarding owning or renting a place of residence
- Date of birth
- Date of attendance/completion of school
- Birthplace of applicant or applicant’s relatives
- Religious days observed
- Questions regarding pregnancy, childbirth or birth control
- Eye or hair color
- General health or medical condition (if not job related and consistent with business necessity)
- General questions regarding organizations, clubs, societies and lodges
- Contact information of a relative to be notified in case of accident or emergency (OK to ask for name and address of person to be notified)
- Requiring a photograph at any time prior to employment
California’s employment laws provide a window to other question areas that are or may soon be unlawful in many other states. For example, it is now illegal in California to ask an applicant (or perform a background check) for his or her criminal-conviction history until after the employer has given that person an actual job offer. With few exceptions, it is also improper in California for a business to require a prospect to disclose his or her compensation levels with previous employers.
All such laws are intended to limit the hiring process to evaluation of a candidate’s qualities that are relevant to the hiring decision; i.e., whether the person carries the intelligence, aptitude, experience and training to competently carry out the essential functions of the position to be filled.
No matter where the business is located, employers should consult with a qualified attorney to confirm its hiring practices comply with workplace law for that state. Employers should also periodically refresh or retrain their job interviewers on such acceptable and unacceptable employment inquiries. By using tools such as the DFEH’s fact sheet above, the next time a prospect brings her pet bird to the interview or tries to conduct a psychic palm reading on the interviewer (yes, these actually happened), it should be easier to respond without inadvertently discriminating.
Managing partner of the Law Offices of Timothy Bowles in Pasadena, California, Tim has an extensive and successful forty-year history as a litigator, specializing in employment law. He is a frequent speaker for employers and professional groups on a wide range of workplace law-related subjects, such as gender-based discrimination and harassment, employee pay practices and management-worker dispute resolution.