California Department of Fair Employment & Housing Fact Sheet
California Department of Fair Employment & Housing Fact Sheet
EMPLOYMENT INQUIRIES
WHAT CAN EMPLOYERS ASK APPLICANTS AND EMPLOYEES?
The Department of Fair Employment and Housing has developed this guide to provide employers with guidance relating to inquiries that can be made to 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 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
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 the 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 medical 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 |
|
| Place of residence |
RESIDENCE |
|
| Statements that hire is subject to verification that applicants meet legal age requirements. |
AGE |
|
| Statements/inquiries regarding verification of legal right to work in the United States. |
BIRTHPLACE, CITIZENSHIP |
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 |
parentage of applicant, applicant’s spouse, parent or relative. |
| Statement by employer of regular days, hours, or shifts to be worked. |
RELIGION |
|
| 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 |
|
|
|
RACE, COLOR, SEXUAL ORIENTATION |
|
|
|
CREDIT REPORT |
|
| Statement that a photograph may be required after employment. |
PHYSICAL DESCRIPTION, PHOTOGRAPHS, FINGERPRINTS |
|
| 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) |
|
| 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) |
|
| 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) |
|
| Job-related questions about convictions, except those convictions which have been sealed, or expunged, or statutorily eradicated. |
ARREST, CRIMINAL RECORD |
|
| Questions regarding relevant skills acquired during U.S. military service. |
MILITARY SERVICE |
|
| Requesting lists of job-related organizations, clubs or professional societies omitting indications of protected bases. |
ORGANIZATIONS, ACTIVITIES |
|
| Name of persons willing to provide professional and/or character references for applicant. |
REFERENCES |
applicant’s race, etc. |
| Name and address of person to be notified in case of accident or emergency. |
NOTICE IN CASE OF EMERGENCY |
relative to be notified in case of accident or emergency. |
NOTE: 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.
For more information, contact the Department toll free at: (800) 884-1684
TTY Number: (800) 700-2320
or visit our Web site at: www.dfeh.ca.gov
his publication can be made available in Braille, large print, computer disk, and tape cassette.