Not all speech is protected by the First Amendment – and rightfully so since it would not do to allow someone to shout “Fire!” in a crowded theater. California and federal law prohibits employment discrimination based on race, religion, nationality, and a dozen other human characteristics. To enforce these prohibitions, California employment law forbids employers from asking job applicants certain types of questions that could be used to evade anti-discrimination laws.
The following types of questions either cannot be asked or can only be asked under certain circumstances:
“Are you a US citizen?”: The more appropriate question to ask is: “Do you have the legal right to work in the United States,” which is certainly relevant. Non-citizen permanent residents may work in the US, and even temporary visitors may work if they have been issued a work permit.
“Are you male or female?”: This question is forbidden unless gender is a “bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business or enterprise.” An airline, for example, cannot hire only female flight attendants, but the Hooters restaurant chain is entitled to hire only female servers.
“Are you married? Do you have children?”: Questions about family status are generally off-limits. One exception is: “Are you related to anyone who works here?” – under limited circumstances.
“Are you pregnant?”: You might think that asking this question would be legal since employers are typically liable for the costs of maternity leave. Nevertheless, it is forbidden along with questions such as: “Do you plan to have children” or “Do you breastfeed your child?”
“What are your religious beliefs?”: This question is off limits unless it is a bona fide occupational qualification. It is acceptable, for example, to ask an applicant for pastor what his religious beliefs are and to turn down his application based purely on his religious beliefs (or lack thereof).
“How old are you?”: Questions about age are off limits unless it is a bona fide occupational qualification. As an example, many jobs cannot be legally performed by anyone under 18, and it is OK to confirm that the applicant meets legal age requirements.
“Are you disabled?”: This question is acceptable to the extent of a disability that would affect job performance or would require the employer to make special accommodations.
“Please provide a photograph of yourself”: It is illegal to require the applicant to submit a photograph prior to hiring him unless appearance is a bona fide occupational qualification – a position as a fashion model, for example.
Questions about the applicant’s gender identity: “Were you born female?”, for example, is a prohibited question because, among other reasons, it is designed to determine whether or not an applicant’s gender identity matches his biological sex.
Questions about the applicant’s race: Such questions are forbidden in all but the rarest circumstances in which an applicant’s race is a bona fide occupational qualification (a movie director is hiring an actor to play the role of a particular historical figure, for example).
The foregoing list is not exhaustive. Any question that appears designed to evade anti-discrimination laws could draw scrutiny, such as asking when an applicant graduated from college as a means of determining their age.
Contact Us for a Consultation
California does not recognize “lack of knowledge” as a justification for violating the law – notwithstanding the fact that much of California’s business law is counterintuitive. If you have any questions, or if you are involved in a dispute, call CKB Vienna now or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.