In general, in order to comply with California law, employers should limit requests for information during the interview and selection process to those details essential to determining a person's experience and qualifications to do the job (with or without reasonable accommodations). Employers are prohibited from requesting information, either verbally, or through an application form, any information that identifies them membership in protected groups. As one question leads to another, the conversation may veer into subjects prohibited in the employment context.
Name: It is acceptable to ask a candidate's name or previous name for purposes of checking their past work record. An employer may not as questions about an individual's name that would indicate ancestry, marital status, national origin, or religion ( i.e., asking for a candidate's "maiden" name or asking questions about the origin of a name).
Age: During the application process, it is acceptable to ask individuals to affirm that they meet the legal age requirements and to require proof of age after hire. It is not acceptable to ask questions about a candidate's age unless it is a bona fide occupational qualification. Employers may not ask questions directly or indirectly that would reveal a candidate's age, such as school attendance dates.
Marital or Family Status: Employers should not ask questions regarding marital status, nor may an employer ask questions about the age or number of children or dependents. An employer may make a statement of a practice policy regarding work assignments of employees who are related. An employer may ask a candidate whether they have a spouse or adult child who is presently employed by the employer. This information may only be used for reasons of supervision, safety, or morale if the employer wishes to refuse to place a close relative under the direct supervision of another relative.
Disability / Medical conditions: It is acceptable for employers to inquire if a candidate can perform essential job-related functions with or without accommodation; and to make inquiries as to, or request information regarding the physical fitness, medical condition, physical condition, or medical history of candidates if that inquiry or request for information is directly related and pertinent to the position the candidate is applying for or directly related to a determination of whether the candidate would endanger their health or safety or the health or safety of others.
Employers may also state that employees may be made contingent upon passing a job-related mental or physical exam, including a vision test if required of all candidates within the same classification; or require a job-related physical agility or fitness test is required of all applicants within the same classification. Any such tests given must be non-discriminatorily applied – that is, required of all candidates within the same classification – and job-related. Drug testing is generally permitted if required of applicants after a conditional offer is made.
But an employer may not make generalized inquiries as to a candidate’s health, present medical condition, or any mental/physical disability; conduct medical or psychological exams at the pre-offer stage, regardless of whether they are job-related; make any inquiry into medical history, including any history of substance addiction; inquire into prior on-the-job injuries, workers’ compensation claims, or absences due to illness; or require genetic makeup tests or inquire as to their results.
National Origin / Ancestry: An employer may request information from all candidates or employees regarding language ability in languages other than English, if relevant to the job in question. But employers may not ask questions about nationality, ancestry, descent, or parentage, or ask questions regarding how foreign-language ability was acquired.
Physical Appearance: It is acceptable for an employer to make a statement that a photograph may be required after employment. But employers may not require or request that candidates submit photographs with their applications or require a photograph after an interview but before hire unless there is a defensible business reason to do so.
Citizenship: It is acceptable to make statements regarding the requirement that candidates have the legal right to work in the United States, although employers may not do so on a discriminatory basis. But employers may not ask questions about the birthplace of an applicant or the applicant’s family. Employers also may not inquire into citizenship status before making an offer of employment, unless U.S. citizenship is a legal job requirement. Nor may an employer require an applicant to present a drivers’ license, unless possession of a license is job-related. Finally, an employer may not require an applicant to produce employment authorization documents prior to hire.
Religion: An employer may make a statement as to regular days, and hours to be worked, or inquire into availability to work on weekends or evenings that were reasonably related to normal business requirements. And an employer may ask all employees or candidates whether, apart from absences for religious observances, the individual will be available to meet their work schedule, with reasonable accommodation if necessary. But, except when it is a bona fide occupational qualification, an employer may not ask questions regarding an individual’s religion or lack thereof, or about religious practice, affiliation, or religious holidays observed. Nor may an employer ask questions about the religious dress, unless it is a bona fide occupational qualification.
Residence / Financial Information / Background Checks: Employers should use caution before requesting information about candidates’ or employees’ residences, running a candidate credit check (CA Labor Code 1024.5), or conducting background searches.
Employers must comply with written notice requirements when running credit or background checks. Credit and background checks may not be used to obtain otherwise prohibited information about marital status, race, age, certain financial information, etc.
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