California law prohibits discrimination against job applicants and employees on the basis of age, race, color, religion, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), national origin, ancestry, mental and physical disability (including HIV and AIDS), medical conditions (such as cancer and genetic characteristics), marital status, genetic information, sexual orientation, gender (including gender identity and gender expression), and military and veteran status.
In order to avoid the appearance of discrimination, employers should limit requests for information during the pre-employment process to those details essential to determining a person’s qualifications to do the job. The following are some general guidelines that employers and employees should know regarding the employment application process.
NAME: An employer should never ask questions about an individual’s name that require the applicant to disclose ancestry, national origin, race, religion or marital status, (i.e., asking for an applicant’s “maiden” name, or asking questions about the origin of a name, rather than simply asking if other names have been used). However, it is acceptable to ask an applicant’s name or previous name for purposes of checking their past work record.
AGE: Unless age is a bona fide occupational qualification, it is not acceptable to ask questions that would otherwise reveal age, such as school attendance dates. However, it is acceptable to ask individuals to affirm that they meet legal age requirements during the application process, and to require proof of age after hire (i.e., asking if the applicant is over 18).
RACE / COLOR: It is never acceptable to ask questions about an applicant’s or employee’s race or color. There is simply no reason for this sort of inquiry as race or color are never a bona fide occupational qualification.
SEX: Asking an individual to identify their sex is never acceptable, unless sex is a bona fide occupational qualification. Nor may employers use proxies for sex, such as stating height or weight preferences, unless they are a bona fide occupational qualification. The classic example is men modeling Victoria’s Secret’s newest women’s undergarment collection.
PREGNANCY / BREASTFEEDING / FERTILITY: The bona fide occupational qualification defense in this context is very narrow, which means asking about pregnancy, breastfeeding, or fertility/childbirth is rarely acceptable. For example, an employer cannot claim to hire nonpregnant women based on fears of danger to the fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.
GENDER / GENDER IDENTITY / GENDER EXPRESSION: Under California law, it is never acceptable to ask questions about an applicant’s gender identity or expression. This includes questions about medical or surgical status or procedures. An employer may only ask about biological sex or gender if it is a bona fide occupational qualification.
MARITAL OR FAMILY STATUS: Generally, an employer may not ask questions regarding marital status or the age/number of children or dependents. However, an employer may ask if the applicant is related to any current employee. However, this information may only be used if the employer has a policy of refusing to place a close relative under the direct supervision of another relative, or if the work involves potential conflicts of interests or other hazards increased by the familial relationship.
DISABILITY / MEDICAL CONDITIONS: Employers may ask if an applicant can perform essential job-related functions with or without accommodation. They can also inquire as to the medical history of applicants if it is directly related and pertinent to the position the applicant is applying for or directly related to a determination of whether the applicant would endanger his or her health or safety or the health or safety of others.
NATIONAL ORIGIN / ANCESTRY: It is permissible to ask employees regarding language ability in languages other than English, if relevant to the job. However, employers may not ask questions about nationality, ancestry, descent or parentage, or ask questions regarding how foreign language ability was acquired.
PHYSICAL APPEARANCE: Employers may not require or request that applicants submit photographs with their applications or require a photograph after an interview but before hiring, unless there is a defensible business reason to do so. However, it is acceptable for an employer to make a statement that a photograph may be required after employment.
CITIZENSHIP: The proper mode of question is to ask whether the applicant has “the legal right to work in the United States,” as opposed to inquired about citizenship. Remember, non-citizens may still be authorized to work in the United States through a work visa. Employers should never ask questions about the birthplace of an applicant or the applicant’s family.
RELIGION: An employer may not ask questions regarding an individual’s religion or lack thereof, or about religious practice, affiliation, or religious holidays observed unless there is a bona fide occupational qualification. An employer may inquire into availability to work on weekends or evenings where reasonably related to normal business requirements.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.