The Interview: Can I Ask That Question? Business Necessity, Age and Sex
There are many “ideas” about what can be asked during a job interview. Many innocent questions could land you in a lot of hot water. In general, if you cannot ask a question outright, you cannot ask it in a cryptic manner.
An employer should be cognizant of both state and federal interview restrictions. In general, all questions asked during the interview process must be able to pass the “Business Necessity” test. If you ask the question, you must be able to tie it directly to the requirements of the position.
Under Federal law, Business Necessity is met if the questions bear a substantial relationship to the job performed. Under the California Fair Employment and Housing Act (FEHA), there must be an overriding legitimate business purpose.
Under Federal Government Code section 12940(d), non-job related questions are prohibited that “expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation.”
Under FEHA, “sex” includes pregnancy, childbirth or pregnancy-related medical conditions, gender, and gender identity.
Questions about childbearing, pregnancy, birth control or family responsibilities are inappropriate and should not be asked unless they are “related to specific and relevant working conditions of the job in question.” 2 Cal Code Regs section 7290.9(b) (3). If these questions are asked during the interview, it will be difficult for the employer to prove that an adverse employment action (the applicant did not get the job) was not based on the applicant’s answers to these questions.
Surprisingly, selecting an “older” applicant over a younger applicant according to the Age Discrimination in Employment Act (ADEA) and FEHA is acceptable. However, any time age is considered or inquired about during an interview, age must be related to the position in question. An employer may inquire about the age of an applicant when the law compels or provides for that action. For example, a bartender must be over age 21. Interviewers are cautioned about questions that may be used to determine an approximate age of the applicant such as date of high school graduation.