Aaron Morris, Esq.

With no discriminatory intent whatsoever, many interviewers get themselves and their companies in trouble by asking seemingly innocent questions. Taking a few steps to avoid improper questions can save your company from litigation and legal fees. Questions such as "How old are you?" "When did you graduate high school?" and "Do you have any disabilities?" can get you into hot water with the law.

Inquiries regarding an applicant's race, color, age, sex, sexual orientation, religion and national origin are illegal under Title VII of the Civil Rights Act and the California Constitution. Age discrimination is also banned under the Age Discrimination in Employment Act, and discrimination against qualified individuals with disabilities is forbidden by the Americans with Disabilities Act, or ADA, as it is commonly known, as well as California's version of that law.

Many interviewers think, consciously or subconsciously, that since they have no evil intent their questions will ultimately survive judicial scrutiny.  But the goal should always be to avoid litigation, not just prevail. Asking illegal interview questions can result in an applicant having sufficient grounds for filing a discrimination lawsuit. At then end of the day, whether the interviewer's intent was evil or not, the company may find itself settling a lawsuit just to avoid the hemorrhaging of legal fees.

Stick to Job Related Subjects

Even when you are making small talk just to be friendly, you can be asking problematic questions.  For example, the applicant mentions the picture of your daughter's softball team on your desk, so you ask, "Do any of your children play sports?"  You just said a mouthful.  With that question, you could conceivably find out whether she has kids, intends to have kids, is a single mom, her sexual preferences, perhaps even her religious beliefs.  All with a question that had nothing to do with the job.  It sounded innocent when you said it, but she could truthfully say in court the the first thing you asked her during the interview was whether she had any children.

The guiding principle is whether you can demonstrate a job-related necessity for asking the question.  Is the information truly necessary to assess the applicant's ability, qualifications or job skills?  If a discrimination case was filed, the federal Equal Opportunity Employment Commission (EEOC) would want to know the interviewer's intent in asking the question as well as how the information was used.

Potentially Improper Questions

Here's a look at what you legally can and can't ask prospective job candidates.

Gender: Unless you're hiring locker-room or restroom attendants, steer clear of gender.

Marital or parental status: One of the most common mistakes made by interviewers is asking, "Are you married?" even though many managers see the question as an conversational icebreaker. You may, however, ask candidates if they have outside responsibilities that would prohibit them from fulfilling job requirements or if they are available to work overtime.

Race and nationality: Just about the only appropriate question that relates to race or nationality is whether the applicant is eligible to work in the United States. Even the simple question of one's native tongue should be replaced with queries about the languages the interviewee speaks and writes fluently.

Age: As a general rule, stick to asking if your interviewees are over 18.

Religion: Unless your organization is a religious institution, you may not legally inquire about religious beliefs. Another mistake is asking hypothetical or situational questions that may elicit the candidate's religious or other beliefs.

Sexual orientation: While laws vary between states and municipalities, the general rule is that no questions pertaining to an applicant's sexual orientation are appropriate.

Arrest or conviction records: The laws are especially tricky here. Employers may ask for a list of convictions other than misdemeanors, but may not inquire whether a prospective employee has been arrested.

Military record: You may ask if the applicant served in the military, the period of service, rank and type of work experience and training received. However, it's illegal to ask about the type of discharge the applicant received.

Disability: Focus exclusively on whether the applicant can perform specific job-related functions, rather than particular disabilities. Asking prospective employees if they have been injured on the job or filed for worker's compensation is also prohibited. The easiest thing is to give someone a job description that includes the physical requirements. Tell them things they will be required to do and ask if they can do them.

Height and weight: Unless these physical attributes directly affect job performance and the tasks that can be clearly defined, don't go there. Follow the same guidelines as with candidates with disabilities.

Financial status: It is common in many industries to use credit reports as part of an application process, but it is important that this be done in compliance with the Fair Credit Reporting Act of 1970, as well as the Consumer Credit Reporting Reform Act of 1996. Asking applicants if they own a home or car, even if only to determine how the prospective employee will get to and from work, is prohibited.

Affiliations: Asking about clubs or social organizations your candidates belong to can get you in trouble, as well. Instead, inquire if candidates belong to any professional or trade organizations they consider relevant to their professional experience or their ability to perform the job.


Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Tustin, Orange County, California. He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.

Aaron Morris attended Southwestern University School of Law, where he was Editor-in-Chief of the Law Review and graduated cum laude in 1987. His practice areas include Free Speech, Defamation and SLAPP Law, as well as employment law (wrongful termination, discrimination, etc.) business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.). He received national attention after prevailing against Bank of America for banking violations. A recognized expert on Internet law, he recently prevailed in two major Internet cases on behalf of clients that were fighting spammers. Every year since 2008, Mr. Morris has been rated “Best Orange County Attorney” by Tustin Magazine. He is the author of California SLAPP Law and How to Start Your Own Law Firm. He has lectured as an Adjunct Professor at both Whittier Law School and National University, teaching “Litigation Skills & Strategies”. He is the current President of the California Defamation Lawyers Association. Mr. Morris is a writer and lecturer on the subjects of law and law office efficiency, and has been a featured speaker at such functions as the American Bar Association TechShow.



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