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Job Interview Questions: Steer Clear of Sex Identity and Sexual Orientation

140155267There are some interview or application questions that might elicit information that could get an employer into legal hot water if used to make an employment decision. Questions that touch on sex identity and sexual orientation should be off-limits. Here are some acceptable and unacceptable questions to help employers avoid problems in this area.

An interviewer shouldn’t ask questions designed to detect a person’s sexual orientation or gender identity, including questions about marital status, spouse’s name, or relation of household members to one another.

But an employer may have legitimate and entirely appropriate reasons to inquire about certain family matters. Here are some acceptable questions/statements, even though they might reveal sex identity and sexual orientation:

  • The name and address of a parent or guardian, if the applicant is a minor.
  • The name and address of a person to be notified in the event of an emergency.
  • A statement of the employer’s policy on the work assignments of employees who are related.
  • “Do you have any relatives already employed with the Company? If so, please provide their name(s) and position(s) held.”

But some areas of inquiry and statements should be off the interview and application list:

  • Any questions that indicate or refer to the applicant’s sex, gender identity, or proof of gender.
  • Any questions that indicate the applicant’s marital status, domestic partner status, what the applicant’s spouse or domestic partner does for a living, or his or her salary.
  • Any questions about a person’s body or whether he or she plans to have surgery (this information is protected by the Health Insurance Portability and Accountability Act (HIPAA).
  • The name(s) of the spouse, domestic partner, relatives, or children of the applicant.
  • A statement that the employer doesn’t provide same-sex partner benefits and that if that is a problem, to inform the employer.
  • “Are you gay/lesbian/bisexual/transgender?”
  • “With whom do you reside?”
  • The name and address of a relative or spouse to be notified in the event of an emergency.

It’s very important that employers be aware of particular questions to ask and the wording to use. For more illustrative examples on other topics, check out the table of acceptable and unacceptable interview questions in CEB’s Drafting Employment Documents for California Employers §1.5. Also get information and guidance on preemployment interviews in CEB’s Advising California Employers and Employees §§1.20-1.31, 1.66-1.74.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 Responses

  1. […] Job Interview Questions: Steer Clear of Sex Identity and Sexual Orientation […]

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