How to Find the Qualified Candidates

 Without Violating Their Rights

Conducting job interviews is no easy task.  In addition to weeding out clearly unsuitable candidates such as those described below, the interviewer should steer clear of discriminatory questions and topics throughout the process.

According to a CareerBuilder nationwide survey (released January 14, 2016), of more than 2,500 hiring and human resource managers, the most common inappropriate candidate behavior included acting dishonestly, behaving arrogantly, dressing inappropriately, cursing, and answering a cell phone or text mid-interview. Some of the oddest conduct reported in the survey 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 candidate’s mental health when exhibiting such bizarre behavior, the California Fair Employment and Housing Act (FEHA) prohibits any non-job-related inquiries, either verbally or through a job application form, that express a limitation, specification or discrimination as to a protected class.  A protected class means a characteristic protected from employment discrimination laws including but not limited to race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex/gender, age, sexual orientation, genetic information, and military and veteran status.

California’s Fair Employment and Housing Commission (FEHC) regulations indicate that questions which, directly or indirectly, identify an individual on one of the above protected bases are also unlawful.

The California Department of Fair Employment and Housing DFEH-161 Fact Sheet: Employment Inquiries  provides further examples of inquiries/discussion topics the interviewer must not address, such as:

• 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 (okay to ask for name and address of person to be notified)
• Requiring a photograph at any time prior to employment

Employers should periodically refresh or re-train their job interviewers on such acceptable and unacceptable employment inquiries.   By using tools such as the DFEH Fact Sheet, the next time someone brings her pet bird to the interview or tries to conduct a psychic palm reading on the interviewer, it should be easier to respond without inadvertently discriminating.

For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth, June 9, 2016