I get it, while on the surface, an interview is a great way to assess an applicant, it is also ripe with potential for a lawsuit when the wrong type of questions are asked. Here are several scenarios.
Do not ask questions about marital status or children. For example, you cannot ask a candidate if she is pregnant, has children or is planning to have children. If you know a candidate has children, you cannot ask if he/she has made provisions for child care. Similarly, if you would not ask a question of a man, do not ask it of a woman (for example, “If you became pregnant, how much time would you need away from work?”).
Be careful when asking about hobbies or outside activities. It is discriminatory to ask about clubs, societies, lodges or organizations to which the candidate belongs that might indicate race, religion, national origin, sex, age, etc.
Don’t ask about the employee’s sex or gender, period. Also never ask questions about an applicant’s gender identity or expression or whether the employee is transgender, transitioning or has transitioned. There is a rare exception for certain times that sex/gender is a bona fide occupational qualification for the particular job. Consult with your legal counsel if you think you have an exception to the general rule prohibiting these type of questions.
Don’t ask which languages a candidate knows unless the job requires the candidate to speak and/or write a particular language fluently.
Don’t ask about salary history, including compensation and benefits. California law prohibits employers from asking about salary history, and from relying on salary history to make hiring decisions or determine how much to pay an employee.
Rarely is it appropriate to ask a candidate’s age. If required for the job, you can ask if the candidate is over a particular age (for example, a bartender or cocktail server).
Some questions about a candidate’s education can be interpreted as seeking information on age. Though it is fine to ask where a candidate went to school, asking what year he/she graduated from high school or college, or inquiring if he/she is a “recent graduate” can be deemed discriminatory.
Don’t request or require the candidate to disclose his or her username or password for purposes of accessing the candidate’s personal social media account(s). Don’t ask the candidate to access their personal media account in front of you during the job interview or ask them to divulge any personal social media to you.
Don’t inquire about conviction history or consider conviction history at any time before a conditional offer of employment has been made.
Due to potential liability under the Americans with Disabilities Act (ADA) and FEHA, familiarize yourself with the basic requirements of those laws before conducting interviews. Though it may seem only natural to ask certain questions of a candidate whose physical disability is obvious to you, many of those questions may be strictly prohibited.
