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Let's say I want to assess how comfortable a candidate is with casual conversation, and if he would fit into our business culture. If I ask a question like "What kind of music do you like?", is that legal? The question is definitely not relevant to essential job functions, but based on how he answers I can assess how well he would fit in our company culture.

feetwet
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Mr. MonoChrome
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  • How do his musical tastes show that he fits the culture? – Dale M Sep 10 '15 at 21:01
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    In what country? – cpast Sep 10 '15 at 21:08
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    @cpast United States, – Mr. MonoChrome Sep 11 '15 at 13:57
  • @DaleM its a hypothetical more than a concrete example. Its not what he/she answers with, its how he/she answers. – Mr. MonoChrome Sep 11 '15 at 13:57
  • Are any questions actually illegal? isn't it just using answers to certain questions as a reason not to hire illegal (i.e., asking about having children vs refusing to hire because one has children?) – Andy Jul 08 '16 at 01:17
  • @Andy its an old question, but the idea that im using the result as a reason to hire is plainly implied. – Mr. MonoChrome Jul 13 '16 at 15:19
  • I don't think the age of the question is at all relevant; its still here, being viewed. And I don't think you should imply anything; using the result of certain questions in the USA (e.g., do you have kids) and then not hiring if someone said they had kids is clearly illegal. So what is your question exactly? Is it really about JUST asking or is it about whether you can use the answer in a hiring decision? – Andy Jul 13 '16 at 16:08
  • yes its about if i can use the answer in a hiring decision, I just.. why would I ask a question that I could not use the answer to make a hiring decision? I feel it is pretty clear that asking arbitrary questions that have no purpose and make no difference is legal, and a waste of time. – Mr. MonoChrome Jul 14 '16 at 15:33
  • No - in CA there are questions that are prohibited in themselves. The latest one to go into effect is in regard to salary history - not just using the information but also seeking the information. Several others have been illegal to ask for decades - in CA. – George White Jan 20 '20 at 23:47

2 Answers2

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Are all interview questions that don't apply to essential functions illegal?

No. Not all such questions are illegal, but see one exception from California legislation as pointed out by @GeorgeWhite and others in section 432.7 of the state Labor Code. Other jurisdictions very likely have equivalent prohibitions, but questions like the one you envisioned ("What music do you like") would not infringe statutory provisions.

Generally speaking, it is lawful for an employer to assess candidates' personality & non-essential skills under casual and not-so-casual scenarios through the use of questions with no relevance to the job at issue. Only in very specific circumstances certain pattern(s) of questions may lead to a finding of harassment or discrimination.

Questions related to categories which the Civil Rights Act protects are risky because a rejected candidate would have at least some grounds for a claim of discrimination. Those categories are [candidate's] race, color, religion, sex, and national origin.

Questions on those protected categories are not illegal, but the employer will have the burden of proving that its challenged practice (i.e., making seemingly discriminatory questions) "is job related for the position in question and consistent with business necessity" (see 42 USC § 2000e-2(k)(1)(A)(ii)) rather than for purposes of unlawful discrimination.

Iñaki Viggers
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  • Very incorrect with California as a prime example. Besides questions that were previously illegal to ask, this year it is illegal to ask about salary history. "Section 432.3 is added to the Labor Code, to read:

    432.3. (a) An employer shall not rely on the salary history information of an applicant for . . . whether to offer employment to an applicant or what salary to offer an applicant. (b) An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, . . . "

     – George White Jan 20 '20 at 19:54
  • @GeorgeWhite Thanks for pointing that out. I edited accordingly. – Iñaki Viggers Jan 20 '20 at 20:16
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A better way to ask those types of evaluative questions would be: We like to enjoy "casual Fridays' here. One team brings in donuts or muffins in the morning, we dress business comfortable, sometimes we'll play music if we are able. What type of music do you enjoy? We play a variety. You can bring in your favorite." OR, "Sometimes the team goes out for cocktails after work on Fridays, would you be comfortable joining us? Not everyone orders alcohol, most do, but we like the comradarie the atmosphere inspires."

IOW, put the question in context.

Dolfan 1972
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    I would take those as bizarre off-topic questions that you were asking to get at something obliquely and wonder what you were really trying to do. If I were in a demographic that might like hip-hop music I might take the music question as a way to find out if I was "one of the good ones". If I were someone who seemed like they might belong to a religion that forbade alcohol I might take the second question as a way to see how touchy I was about it. I'm not sure what you would learn about me from whatever answer I would come up with but I would learn that I do not want to work for you. – George White Mar 14 '21 at 22:07