Potentially Discriminatory Interview Questions: A Guide for Employers

January 28, 2025

Under both the California Fair Employment and Housing Act (“FEHA”) and Title VII of the federal Civil Rights Act of 1964), certain questions are impermissible during job interviews because they may lead to discrimination or bias. The California Civil Rights Department (formerly known as the Department of Fair Employment & Housing) has published written guidance for employers on that topic, which is very helpful.

The following is a summary of the CDR’s guidelines:

Health and Disability

• Medical Conditions: Inquiries about whether a candidate has any medical conditions or disabilities are impermissible. Employers may only ask if the candidate can perform the essential functions of the job position, either with or without reasonable accommodation.
• Mental Health: Questions about mental health conditions are also prohibited.

Background and Personal Beliefs

• Religion: Asking about a candidate’s religious beliefs, practices, or affiliations is not allowed.
• Political Affiliation: Questions about political beliefs or affiliations are impermissible.
• Sexual Orientation: Inquiries about a candidate’s sexual orientation, gender identity, or gender expression are prohibited.

Legal and Financial Status

• Criminal History: Under the “ban the box” laws, employers cannot ask about a candidate’s criminal history before making a conditional job offer.
• Credit History: Questions about a candidate’s credit history or financial status are generally not allowed unless directly related to the job.

Personal Information

• Marital Status: Asking if a candidate is married or plans to get married is prohibited.
• Family Plans: Questions about whether a candidate plans to have children or is pregnant are not allowed.
• Age: Candidates who are at least 40 years old are protected from age discrimination under both California and federal law. Employers cannot ask about a candidate’s age, including indirect or surrogate questions like the year they graduated. However, employers can ask younger employees who are obviously less than 40 whether they are old enough to be employed without a school or parental permission, in accordance with the Child Labor laws.

National Origin and Citizenship

• Nationality: Employers cannot ask about a candidate’s nationality, place of birth, or citizenship status. However, they may ask if the candidate is authorized to work in the United States.
• Language: Questions about a candidate’s native language, or how they acquired their language skills, are impermissible

Physical Characteristics

• Height and Weight: Inquiries about a candidate’s height and weight are generally prohibited unless they are directly related to job requirements. That is because an individual’s height or weight may be the result of a disabling medical condition or genetic trait.

Employers must be cautious and ensure that their interview questions are job-related and do not infringe on the protections provided by the FEHA and Title VII. By avoiding these impermissible questions, employers can create a fair and equitable hiring process that respects the rights of all candidates while still gathering and assessing the business-related information needed to make a hiring decision.