Question

With summer approaching, I am starting to hire summer help for my busy retail store. Although I do all of the interviewing myself, I am worried about reports that I have read of applicants suing for discrimination when they are not hired. What guidelines should I follow when I am interviewing potential employees?

Answer:

You are correct in your conclusion that California law imposes an obligation on employers not to discriminate against applicants for employment. In California, it is unlawful for an employer to discriminate against an applicant on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. However, an employer may refuse to hire an employee if the employee’s mental or physical disability prevents him or her from performing the essential duties of the job, even with reasonable accommodations.

Your preparation for hiring should start with a job description that describes the essential functions that need to be performed for successful performance of the job. You should also be aware that you are obligated to provide applicants with disabilities reasonable accommodation, if needed, to enable their full participation in the interview process.

When conducting applicant interviews, in addition to other relevant questions, you should:

  • Ask all applicants for the same job the same basic set of questions. Of course, follow-up questions may vary.
  • Ask about the applicant’s ability to perform the essential functions of the job.
  • Ask about prior employment, description of duties, length of employment and reason for leaving. You may ask for references.
  • Ask whether applicants possess special skills, knowledge or experience relevant to the job.
  • Ask applicants to explain significant gaps on resumes or job applications.
  • Ask the applicant about their availability to work at the times that you need them to work. If the employee needs time off for religious observance, for example, evaluate whether those needs can be accommodated without imposing an undue hardship on your business.
  • To comply with the Immigration Reform and Control Act, ask applicants whether they are authorized to work in the United States, and if they can provide documentation to prove it if they are provided a conditional offer of employment.
  • Make and retain notes of each interview.

The following questions should not be asked:

  • Do not ask applicants to provide photographs of themselves or take photographs of the applicants.
  • Do not ask applicants about their race, religion, national origin or any of the protected categories listed above.
  • Do not ask applicants whether they have a disability, and do not ask questions about a known or obvious disability.
  • Do not ask questions that are related to the existence of a disability. For example, do not ask about medical history, health insurance claims, or workers’ compensation claims. If you have reason to believe that the applicant with a known or obvious disability will need accommodation to perform the essential functions of the job, you may ask if accommodations will be needed and discuss with the applicant what kind of accommodations might be needed.
  • Do not ask about family matters, such as marital status, pregnancy, plans to become pregnant, or the applicant’s children.
  • Do not ask applicants about arrests that did not result in criminal convictions. However, you may ask about convictions for crimes that relate to the job.

The Department of Fair Employment and Housing issues a fact sheet of employment inquiries that contains more information about what employers can ask applicants and employees. The fact sheet is available on the Internet at www.dfeh.ca.gov, click on publications, click on employment discrimination, and go to number 9, the pre-employment inquiry guidelines.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2005 Articles