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HR Question of the Month

Enquiron  | Published on 10/4/2019

Question:
We want to make sure we’re not asking any interview questions we shouldn’t or aren’t allowed to be asking of candidates. Specifically, can we ask how much a candidate was earning at his/her last job(s)? What if we’ve heard that someone has a history of harassment (or making claims of harassment) at a prior place of employment -- can we inquire about that?

Answer:
Generally employers should refrain from asking any questions -- whether on an application, during an interview, or otherwise during the hiring process -- that require candidates to disclose, or could elicit unintentional disclosure of, information about their membership in a protected class (i.e., a class that is protected under federal, state or local anti-discrimination laws). This means that at a minimum employers should not directly or even indirectly ask about race, color, sex, religion, national origin, birthplace, age (except when necessary to confirm a minimum age required, and in a yes or no manner only), disability, pregnancy, or marital/family status (and, in some jurisdictions, gender identity or sexual orientation), nor should they ask questions about veteran status or workers' compensation history. To not hire a candidate on the basis of any one of these or similar categories is unlawfully discriminatory and potentially retaliatory. Indeed questions that elicit information about such characteristics can indicate that the employer is intentionally seeking to discriminate or retaliate, and can create significant exposure to the employer if a candidate is not hired after responding to such inquiries. Employers generally cannot take such information into consideration when making employment decisions, and therefore should not be asking such questions of applicants, whether directly or indirectly.

As for questions specifically about prior compensation history, some states (California, for example) now prohibit such inquiries outright. That said, even where these questions are not outlawed, employers should consider whether they want to proceed with making prior salary history or expected income a relevant or necessary part of its hiring process, particularly given the current climate where several states have such laws and a number of others are considering them. Seeking salary history from job applicants and/or relying on prior salary to set employee pay rates can create issues for employers because the data can potentially contribute to gender wage gaps by perpetuating wage inequalities. For reference, CA's statutory language provides that "[w]hen employers make salary decisions during the hiring process based on prospective employees’ prior salaries or require women to disclose their prior salaries during salary negotiations, women often end up at a sharp disadvantage and historical patterns of gender bias and discrimination repeat themselves, causing women to continue earning less than their male counterparts." This law is not binding on employers outside of CA, of course, but gender discrimination is unlawful under federal law, which applies in all states, and the federal Equal Pay Act (EPA) specifically and expressly prohibits gender-based wage discrimination. See https://www.eeoc.gov/laws/statutes/epa.cfm for more information on the EPA. Accordingly, employers in other states may want to consider the underlying reasoning of the CA law, and contemplate taking a similar approach by omitting compensation history or expectation inquiries.

Still, we appreciate that employers in states without express salary history bans may still find value in using responses to questions about pay history or expectations as a starting point for compensation negotiations. So long as such employers are compliant with applicable anti-discrimination and pay equity laws, and inquiries are asked of all candidates (or at least all candidates for the same position), and not just some of them, they arguably have discretion to make such determinations as to these types of inquiries, but again should consider the potential consequences outlined above before proceeding

As for inquiries related to whether a candidate brought forth a harassment claim with one or more prior employers, we advise against such inquiries. Individuals who have exercised their right to file a harassment complaint or claim, whether with a prior or current employer, are protected against retaliation for having done so -- and not hiring someone due to their complaint history would arguably be construed as a retaliatory action. As such, it is a best practice to avoid even an inquiry about such complaints or claims during (or even after) the hiring process. Indeed, if the employer makes such an inquiry and then the individual is not hired (or faces other adverse action after employment commences), the employer risks exposure to a retaliation claim, and the fact that the employer sought to ask such questions can substantially impair its ability to defend such a charge. On the other hand, if the employer never asks about, and thus is never in possession of, such information (which arguably is not relative to making a hiring or employment decision, regardless), it makes mounting a discrimination or retaliation claim very difficult for the individual in question to do.

Asking candidates whether they were ever accused of workplace harassment (versus having complained of alleged harassment) is not, per se, an unlawful question, but employers should also be cautious before making such inquiries. As an initial matter, any such question must be asked of all candidates, not just some of them, to avoid potential discrimination concerns. As well, the employer must consider that it may not secure accurate or complete information from an applicant, and oftentimes their prior employers will provide only a neutral reference, without verification either way. Finally, individuals who are alleged to have engaged in harassment in the workplace are not necessarily “guilty” of the conduct of which they were accused in all cases, so employers that make such inquiry part of their hiring process would do well to engage in a discourse with any candidates who disclose a prior accusation to determine the facts and circumstances. After discussion, the employer can assess whether it does or does not warrant disqualification from employment opportunity.