Be careful of questions that may be perceived as discriminatory or that violate the law. Any question prohibited on a job application is prohibited in an interview.

Avoiding Overpromising in Interviews

You must train supervisors who participate in the interview process not to exaggerate the employment opportunity no matter how anxious they are to recruit the candidate. An interviewing supervisor can create significant liability for their employer if they convince a candidate to leave secure employment by knowingly making false promises about the terms of the candidate's future employment.1

Asking Appropriate Questions

To ensure that the interviews you conduct don’t expose you to lawsuits, create a list of acceptable questions and stick to them. Be sure all questions are strictly job-related, nondiscriminatory and not an invasion of the candidate’s privacy.

• Become familiar with the Guide for Pre-Employment Inquiries, which outlines discriminatory and acceptable interview topics.

Potentially discriminatory questions can take many forms but, generally, these are questions that might elicit information about a protected characteristic. The following are some examples:

• Don’t ask questions about marital status or children. For example, you can’t ask a candidate if she’s pregnant, has children or is planning to have children. If you know a candidate has children, you can’t ask if they’ve made provisions for child care, etc.
• Be careful when asking about hobbies or outside activities. It’s discriminatory to ask about clubs, societies, lodges or organizations to which the candidate belongs that might indicate race, religion, national origin, sex, age, etc.
• Don’t ask about the applicant's sex, gender, gender identity or expression or whether the employee is transgender, transitioning or has transitioned. There's a rare exception for certain times that sex/gender is a bona fide occupational qualification for the particular job. Consult with legal counsel if you think you have an exception to the general rule prohibiting these types of questions.
• Don’t ask which languages a candidate knows unless the job requires the candidate to speak and/or write a particular language fluently.
• Don’t ask about salary history, including compensation and benefits. California law prohibits employers from asking about salary history, and from relying on salary history to make hiring decisions or determine how much to pay an employee. For more information, see Application for Employment.
• Don't ask questions implicating the applicant's age. This include questions from which one can infer age, such as education-related questions about when they graduated, etc. In certain rare circumstances, if required for the job, you can ask if the candidate is over a particular age (for example, a bartender or cocktail server). There are a few exceptions to asking about age, which are noted in the Guide for Pre-Employment Inquiries.
• Don’t request or require candidates to disclose their username or password for purposes of accessing their personal social media account(s). Don’t ask candidates to access their personal media account in front of you during the job interview or to divulge any personal social media to you.2 For more information, see Social Media.
• Don’t inquire about conviction history or consider conviction history at any time before a conditional offer of employment has been made. For more information, see Restrictions on Obtaining Criminal History.

Due to potential liability under the Americans with Disabilities Act (ADA) and FEHA, familiarize yourself with the basic requirements of those laws before conducting interviews. Though it may seem only natural to ask certain questions of a candidate whose physical disability is obvious to you, many of those questions may be strictly prohibited. For more information, see Disability-Related Inquiries.

Taking Notes During an Interview

It's often necessary to take notes during interviews so you can review the notes when making a final decision. However, it is important to ensure that you record information in a way that won't cause you problems in court. Take brief, clear and legible notes that pertain only to the candidate's answers.

If you're not careful, upon close examination, notes taken during an interview can give a discriminatory impression and subject you to discrimination claims.

Consider the following real-life scenario: An employer made a notation on the application of a candidate for a position at the jewelry counter of a large department store. While he intended the notation to mean “no experience selling jewelry,” the words “no jew” resulted in the candidate filing religious discrimination charges against the store.

If you’re taking notes about the candidate’s responses to questions, be sure that you’re not using abbreviations or a coded rating system that could be incorrectly interpreted at a later date.

Keep objective records of why a candidate was or wasn’t hired. For example:

• For an alarm installer: “Did not have experience with necessary equipment” rather than “not impressed.”
• For a retail clothing store: “Unwilling to work our busiest shifts” rather than “wasn’t right for the job.”

Be sure your notes evaluate criteria actually necessary to perform the job. For instance, when interviewing for an administrative assistant, your notes should reflect items such as “good interpersonal skills, types 75 wpm,” rather than “nice suit.”

1. Helmer v. Bingham Toyota Isuzu, 129 Cal. App. 4th 1121 (2005)