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Employment Inquiries

What Can Employers Ask Applicants and Employees?

 

The Department of Fair Employment and Housing has developed a guide to provide employers with guidance relating to inquiries that can be made to employment applicants and employees.

The California Fair Employment and Housing Act (FEHA) prohibits any non-job-related inquiries of applicants or employees, either verbally or through the use of an application form, that express, directly or indirectly a 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, or any intent to make such a limitation, specification, or discrimination.

The regulations of the Fair Employment and Housing Commission indicate that inquiries that, directly or indirectly, identify an individual on a basis enumerated in the Act are unlawful. However, it is not unlawful for an employer to collect applicant flow data and other record keeping data for statistical purposes. Misuse of this data constitutes a violation of the Fair Employment and Housing Act.

Applicants for Employment

The FEHA also prohibits an employer from requiring any medical or psychological examination or inquiry of any applicant or to make any inquiry whether an applicant has a mental or physical disability or medical condition. It is also unlawful to make an inquiry regarding the nature and severity of a mental or physical disability or medical condition. However, an employer may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant's request for reasonable accommodation.

Once an employment offer has been made to an applicant, but prior to commencement of employment duties, an employer may require a medical or psychological examination provided that:

The examination or inquiry is job-related and consistent with business necessity and;
   
That all entering employees in the same job classification are subject to the same examination or inquiry.
   

Employees

An employer may not require any medical or psychological examination or make any inquiry of an employee, or inquire whether an employee has a mental or physical disability or medical condition or inquire into the severity of the disability or condition.

However, an employer may require any medical or psychological examination or make inquiries that it can show are job-related and consistent with business necessity. An employer may conduct voluntary medial examinations, including medical histories, which are part of an employee health program available to the employee at the work site.

The Employment Inquiries table is a guide and is not intended to be an exhaustive list of all acceptable and unacceptable inquiries. Those questions considered unacceptable are likely to limit the employment opportunities of persons protected by the Fair Employment and Housing Act.

Employment Inquiries

Acceptable Subject Unacceptable
Name Name Maiden Name
Place of residence. Residence Questions regarding owning or renting.
Statements that employment is subject to verification that applicants meet legal age requirements. Age Age

Birth Date

Date of Attendance / completion of school.

Questions which identify applicants over 40.
Statements / inquiries regarding verification of legal right to work in the United States. Birthplace, Citizenship Birthplace of applicant or applicant's parents, spouse or other relatives.

Requirements that applicant produce naturalization or alien card prior to employment.
Languages applicant reads, speaks or writes if use of language other than English is relevant to the job for which applicant is applying. National Origin Questions as to nationality, lineage, ancestry, national origin, descent or parentage of applicant, applicant's spouse, parent or relative.
Statement by employer of regular days, hours, or shifts to be worked. Religion Questions regarding applicant's religion.

Religious days observed.
Name and address of parent or guardian if applicant is a minor. Statement of company policy regarding work assignment of employees who are related. Sex, Marital Status, Family Questions to indicate applicant's sex, marital status, number / ages of children or dependents.

Questions regarding pregnancy, child birth, or birth control.

Name / address of relative, spouse or children of adult applicant.
  Race, Color Sexual Orientation Questions to applicant's race, color, or sexual orientation.

Questions regarding applicant's complexion, color of eyes, hair or sexual orientation.
  Credit Report Any report which would indicate information which is otherwise illegal to ask, e.g. marital status, age, residency, etc.
Statement that a photograph may be required after employment. Physical Description, Photographs, Fingerprints Questions as to applicant's height / weight.

Requiring applicant to affix a photograph to application or submit one at his / her option.

Require a photograph after interview but before employment.
Employer may inquire if applicant can perform job-related functions.

Statement that employment offer may be made contingent upon passing a job-related mental / physical examination.
Mental / Physical Disability, Mental Condition (Applicants) Any inquiry into the applicant's general health, medical condition, or mental / physical disability.

Requiring a psychological / medical examination of any applicant.
A medical / psychological examination / inquiry may be made as long as the examination / inquiry is job-related and consistent with business necessity and all applicants for the same job classification are subject to the same examination / inquiry. Mental / Physical Disability, Medical Condition (Post-Offer / Pre-Employment) Any inquiry into the applicant's general health, medical condition, or physical / mental disability, if not job-related and consistent with business necessity.
A medical / psychological examination / inquiry may be made as long as the examination is job-related and consistent with business necessity. Mental / Physical Disability, Medical Condition (Employees) Any inquiry into the employee's general health, medical condition, or mental / physical disability, if not job-related and consistent with business necessity.
Job-related questions about convictions, except those convictions which have been sealed, or expunged, or statutorily eradicated. Arrest, Criminal Record General questions regarding arrest record.
Questions regarding relevant skills acquired during U.S. military service. Military Service General questions regarding military service such as dates / type of discharge.

Questions regarding service in a foreign military.
Requesting lists of job-related organizations, clubs or professional societies omitting indications of protected bases. Organizations, Activities General questions regarding organizations, clubs, societies and lodges.
Name of persons willing to provide professional and / or character references for applicant. References Questions of applicant's former employers or acquaintances which elicit information specifying applicants, race, etc.
Name and address of person to be notified in case of accident or emergency. Notice In Case of Emergency Name, address, and relationship of relative to be notified in case of accident or emergency.

Any inquiry, even though neutral on its face, which has an adverse impact on persons on a basis enumerated in the Fair Employment and Housing Act, is permissible only if it is sufficiently related to an essential job function to warrant its use.

 
 





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