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Guide to California Pre-Employment Inquiries

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Interviewing applicants for possible hire is fraught with hidden dangers. The Equal Employment Opportunity Act prohibits discrimination against job seekers on the basis of age, disability, sex, race, nationality, religion, genetics, and veteran status. Crafting interview questions that steer clear of these subjects and a possible discrimination lawsuit can be difficult. Sometimes a routine or simple inquiry can be seen as soliciting information design to disqualify a job applicant on something other than job performance; level of education ; skills or experience. Below is a table of subject areas with suggested acceptable and unacceptable questions.

Subject

 Acceptable Unacceptable
Name
  • "Have you ever used another name?"
  • "Is any additional information relative to change of name, use of an assumed name, or nickname necessary to enable a check on your work and education record? If yes, please explain."
  • "What was your maiden name?"
Residence
  • "What is your current address?"
  • "Is this your permanent address?"
  • "What is your telephone number?"
  • "Do you own your home or do you rent?"
  • "Names and relationships of person with whom you reside?"
Job position
  • "Have you ever applied for a job at this company before?
  • Where?"
  
Date
  • "When can you start work?"
  
Attendance
  • Whether applicant can meet employer’s attendance requirements
  • "How many Mondays or Fridays were you absent last year on leave other than approved vacation leave?"
  • "How many days of work did you miss because of illness?
  
Present and former employment
  • "Are you employed now?"
  • "May we talk to your current employer?"
  
Name(s) of employers    
Period of employment    
Position    
Reason for leaving    
Attendance record    
Educational experience
  • "What schools did you attend?"
  • "Did you graduate?"
  • "Did you graduate from high school?"
  • "What are your dates of attendance or date of completion of elementary or high school?"
Schools
  • Elementary school, high school, college, trade, correspond-ence, or business school.
  • "What subjects did you study?"
  • "Did you pursue any special subjects or research?"
  • "Do you have, or do you intend to obtain licenses or certificates required for any job duties?"
  • "Why do you not have the necessary licenses or certifications?"
  • Activities (as long as applicant may omit any that indicate race, color, religion, national origin, ancestry, disability, sex, marital status, or age)
  
Age
  • "Your employment here is subject to verification that you meet all legal age requirements."
  • "If hired, can you show proof of age?"
  • "Are you over 18 years of age?"
  • "If under age 18, can you, after employment, submit a work permit?"
  • Questions that tend to identify applicants over age 40
  • Questions about age, birth date, dates of attendance or completion of elementary or high school
Birthplace, citizenship p
  • "Can you, after employment, submit verification of your legal right to work in the United States?"
  • "You may be required to supply such proof after you are hired."
  • Statement that such proof may be required after employment.
  • Birthplace of applicant, applicant’s parents, spouse, or other relatives.
  • "Are you a U.S. citizen?"
  • "What is the citizenship of your parents, spouse, or other relatives?"
  • Requiring applicant to produce naturalization, first papers, or alien card prior to employment.
National origin
  • Language applicant reads, speaks, or writes, if use of a language other than English is relevant to the job for which applicant is applying
  • Questions about nationality, lineage, ancestry, national origin, descent, or parentage, parents or spouse
  • "What is your mother tongue?"
  • "What language do you commonly use?"
  • How did you acquire your ability to read, write, or speak a foreign language?"
Sex, marital status, family
  • Name and address of parent or guardian if applicant is a minor
  • Statement of company policy on work assignment of employees who are related
  • Questions that elicit applicant’s marital status
  • Number or ages of children or dependents
  • Provisions for child care
  • Questions about pregnancy, child bearing, or birth control
  • Name and address of relative, spouse, or children of applicant

Race
  • Any Race related question is never acceptable.
  • Any questions about applicant’s race
  • Questions about applicant’s complexion or color of skin, eyes, or hair
Physical description; photograph
  • Statement that photograph may be required after employment
  • Questions about applicant’s height and weight
  • Require applicant to affix photograph to application
Physical condition or disability
  • "Do you need reasonable accommodation to perform this job?"
  • Whether applicant will need reasonable accommodation for the hiring process (if applicant says yes, employer may ask for reasonable documentation from doctor or rehabilitation counselor about his or her disability)
  • Statement by employer that offer may be contingent on applicant’s passing a job-related physical examination
  • Whether the applicant can perform any or all job functions, including whether the applicant can perform functions "with or without reasonable accommodation."
  • Applicant may be asked to describe or demonstrate how he or she would perform any or all job functions (as long as all applicants in the job category are asked to do this)
  • If employer reasonably believes that applicant will be unable to perform a job function because of a known disability, or because applicant has voluntarily disclosed a hidden disability, applicant may be asked to demonstrate how he or she would perform a function, whether or not other applicants in the job category are asked this.
  • Questions about applicant’s general medical condition, health, or illness
  • Questions about job-related injuries or receipt of workers’ compensation benefits
  • Questions that are likely to elicit information about a disability that do not relate to fitness to perform the job.
  • Whether applicant can perform major life activities, such as standing, lifting, walking, (unless such questions are specifically about the ability to perform one or more job functions)
  • "Do you have any physical disabilities or handicaps?"
  • "Can you perform these job functions with/without reasonable accommodation (check one)?"
  • Request applicant, at his or her option, to submit a photograph
  • Require applicant to submit photograph after interview but before employment
  • Videotaping interviews
  • This question must be accompanied by a statement that a conviction will not necessarily disqualify applicant
Drug and alcohol use
  • Questions about applicant’s current illegal use of drugs.
  • Questions about past illegal use of drugs if it does not go to past drug addiction (which is a covered disability under the ADA, as long as the person is not a current illegal drug user)
  • Examples: "Have you ever used illegal drugs?"
  • "Have you used illegal drugs in the last six months?"
  • Questions about applicant’s legal use of drugs if he or she tests positive for use of a controlled substance and employer seeks explanation for positive result.
  • Questions about applicant’s current legal use of drugs (e.g., "What medications are your currently taking?" "Have you ever taken AZT?"
  • Questions about applicant’s past use of illegal drugs that are likely to elicit information about whether applicant is a former drug addict. Examples: "How often did you use illegal drugs in the past?"
  • "Have you ever been treated for drug addiction?"
  • "Have you ever been treated for drug abuse?"
  • Questions about applicant’s alcohol use or participation in an alcohol rehabilitation program.
Religion
  • Statement of regular days, hours, or shifts to be worked.
  • Questions about applicant’s religion or religious days observed, e.g., "Does your religion prevent you from working weekends or holidays?"
Arrest, criminal record
  • "Have you ever been convicted of a felony?"
  • Questions about applicant’s arrest record, e.g., "Have you ever been arrested?"
Military service
  • Questions about relevant skills acquired during military service
    General questions about military service, such as dates and type of discharge
    Questions about service in a foreign military
  
Economic status
  • Questions about current or past assets, liabilities, or credit rating including bankruptcy or garnishment
  
Bonding
  • Statement that bonding is a condition of hire
  • Questions about refusal or cancellation of bonding
Organizational activities
  • "Please list job-related organizations, clubs, professional societies, or other associations to which you belong — you may omit any that indicate race, color, religion, national origin, ancestry, disability, marital status, sex, or age."
  • "List all organizations, clubs, societies, and lodges to which you belong."
References
  • "Who referred you for a position here?"
  • Names of persons willing to provide professional and/or character references for applicant, and years acquainted
  • Questions about applicant’s former employers or acquaintances that elicit information on applicant’s race, color, religion, national origin, ancestry, disability, sex, martial status or age
Emergency notification
  • Names and addresses of person to be notified in accident or emergency
  • Name and address of relative to be notified in accident or emergency
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