Illegal Interview Questions in California: What Employers Cannot Ask

California's Fair Employment and Housing Act (FEHA), California Government Code § 12940, provides stronger protections than federal law in multiple ways. State law covers employers with just 5 or more employees (vs. 15 federally under Title VII), significantly expanding coverage to smaller employers. California explicitly prohibits inquiries about arrest records unless directly related to the job position (Government Code § 12952), medical history, disability, family or marital status, sexual orientation, and gender identity—protections that go beyond most federal law. Under Senate Bill 1008 (effective 2018), employers cannot ask about salary history before making a conditional offer, and can only verify prior compensation after making such an offer.

California's Department of Fair Employment and Housing (DFEH) enforces FEHA and applies a more expansive definition of unlawful discrimination than federal agencies. The state recognizes additional protected categories not explicitly covered federally: gender identity, gender expression, sexual orientation, and immigration status (in some contexts). Importantly, California imposes a burden-shifting framework where once a job applicant makes a prima facie case of discrimination (showing a protected characteristic was a factor in the hiring decision), the employer must prove the decision was based on legitimate, non-discriminatory factors. State law also permits private right of action with enhanced damages: applicants can recover compensatory damages, punitive damages up to $10,000 per violation, and full attorney's fees without a cap.

Certain interview questions are permissible if genuinely job-related and consistent with business necessity. Employers may ask about work history, education, professional licenses, certifications required for the position, and ability to perform core job functions. For positions with security clearance requirements or bonded positions, employers may inquire about conviction records (though arrest-only questions remain prohibited). Questions about disability are prohibited, but employers may ask candidates to describe how they would perform specific job duties or whether they can perform essential functions with or without reasonable accommodation.

Bona fide occupational qualifications (BFOQs) provide a narrow exception: for example, a position requiring the ability to lift 50 pounds can include questions about physical capabilities. However, California construes BFOQs very narrowly—far narrower than federal interpretation—requiring the employer to prove the characteristic is truly essential to job performance. Questions about medical history are prohibited even for positions with physical demands; instead, employers must ask whether the candidate can perform job functions.

At-will employment status does not exempt employers from FEHA restrictions; illegal interview questions violate the law regardless of the employment relationship type. Union employees, independent contractors, and temporary workers all receive FEHA protection. The state's anti-retaliation provisions (Government Code § 12965) also protect applicants who oppose or report illegal interview questions, even before hire. An applicant may challenge illegal questions even if offered the job.

Step 1: Document the violation immediately. Write down the exact question(s) asked, the date, time, location, interviewer name and title, any witnesses present, and your response. If the interview was recorded (with your knowledge), preserve that recording. Note whether the question was asked in writing, verbally, or via video call. Document how the question was job-related or not—explain why it was inappropriate. Keep all written communications (emails, applications, rejection letters) from the employer. Take screenshots of job postings if they contained inappropriate requirements or screening questions.

Step 2: Determine whether an internal complaint process exists. Check the company's employee handbook or hiring materials for a complaint or grievance procedure. If one exists, file a formal written complaint with the HR department or designated contact, clearly identifying the interviewer, the question, the date, and how it violated your rights. Send via email so you have proof of receipt and timestamp. This step is not legally required but may preserve evidence and sometimes leads to resolution. Keep a copy for your records. Do not rely solely on verbal complaints to management; follow written procedures when available.

Step 3: File a complaint with the California Department of Fair Employment and Housing (DFEH). You have 300 days from the date of the illegal interview question to file. Submit form DFEH-161 (Complaint of Discrimination) online at dfeh.ca.gov or by mail to the DFEH office serving your region. Include: your name, address, phone, email; the employer's name, address, and number of employees; the date of the interview; the specific question(s) asked; your protected characteristic (age, disability, arrest record, etc.); an explanation of how the question was unlawful; names of witnesses if applicable; and documentation (emails, notes, recordings if available). You do not need an attorney to file; the DFEH process is free.

Step 4: Understand the investigation process. The DFEH will assign an investigator within 30-45 days. The investigator will contact you, then contact the employer for a response. The employer will submit a written statement addressing your allegations. You may be asked for additional information. The investigation typically takes 120-180 days. The investigator will interview witnesses and review documentation. You will receive a notice of investigation results: either a determination of no probable cause (case closed) or probable cause finding (DFEH may pursue conciliation with the employer or, if unsuccessful, issue a right-to-sue letter allowing you to file civil court action). If you disagree with a no-probable-cause determination, you may request administrative appeal within 30 days.

Step 5: Consult an employment attorney if probable cause is found or if you intend to appeal a no-probable-cause determination. An employment law attorney specializing in FEHA/discrimination cases will evaluate your case, negotiate with the employer, or file a civil lawsuit in superior court. Most employment attorneys work on contingency (no upfront cost; they take a percentage of any settlement or judgment). California's FEHA permits recovery of attorney's fees, making contingency representation common. If filing civil court action, the statute of limitations is 4 years from the date of the illegal question. An attorney can pursue claims not available through DFEH, such as tort damages or contract claims, and can obtain injunctive relief preventing future discrimination.