What Not to Ask Job Applicants, Employment Discrimination in the Job Interview

San Diego Personal Injury Attorney Arnold Hernandez

What Not To Ask Job Applicants

                    In California it is an unlawful practice for an employer, to discriminate on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person. This includes hiring, selection for a training program leading to employment, compensation or terms, conditions, or privileges of employment. The only exceptions are for bona fide occupational qualifications, or applicable security regulations established by the United State or the State of California.
                     There are also exceptions where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
                     California law does not does not prohibit an employer from refusing to hire, or discharging an employee who, because of the employee's medical condition, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.
                  California law, also does not prohibit refusal to employ or the discharge of an employee who, because of the employee's medical condition, is unable to perform his or her essential duties, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.
                  Sometimes employers have tried to use the excuse that customers prefer a particular type of employee as a bonafide occupational qualification, but generally the courts have rejected these defenses. Some employers have claimed, their customers prefer women, or that their customer prefer to be served by white waiters, but these are not bonafide occupational qualifications.
                  As such an employer cannot ask questions pertaining to the protected class. During a job interview employers are not permitted to ask questions pertaining to the applicants race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person. The following questions are sample questions that are unlawful and should not be asked of prospective employee:

1. Where were you born ?

2. Where are you from ?

3. What is your nationality ?

These questions pertain to race and national origin and therefore illegal.

4. Are you Christian ?

5. Do you go to church ?

6. Do you believe in God ?

7. Do you accept Jesus Christ as your savior ?

8. What is your religion ?

9. Are you a Mormon ?

10. Are you a Satanist ?

These questions pertain to religion and therefore illegal. The employer is permitted to ask if the applicant practices a religious belief that requires special accommodation.

11. Where were your parents born ?

12. Where were your grandparents born ?

These questions pertain to ancestry and likewise illegal.

13. How is your health ?

14. Do you have a heart condition ?

These questions pertain to disability and are illegal. The employer is permitted to ask if the applicant has any disability that would require reasonable accommodations. An employer cannot discriminate on the basis of disability or perceived disability. If a prospective employee appears to be disabled and the employer uses the perceived disability as the basis for refusing to hire a prospective applicant or the basis to terminate an employee, then a claim against the employer arises.

15. Are you married ?

16. Are you single ?

17. What is your marital status ?

These pertain to marital status and under California law are illegal. Some benefit plans may provide greater benefits to married employees, but generally permitted even though they may favor married employees.

18. Are you gay ?

19. Are you a lesbian ?

20. What is your sexual orientation ?

Under California law it is unlawful to discriminate on the basis of sexual orientation.

21. Are you planning to get pregnant ?

California prohibits discrimination on the basis of pregnancy and requires certain employers to give time off for pregnancy.

22. What year did you graduate from high school ?

23. How old are you ?

24. What is your birth date ?

25. What year did you graduate from high school ?

Age discrimination is prohibited against persons age 40 and over, and therefore these questions cannot be asked of prospective employees over the age of 40. An employer can ask if the person is over 18 or 21.