More and more state and local governments are passing laws that prohibit employers from asking applicants about pay history.
Eighteen states and 17 localities have passed such laws. Some of the places that now prohibit the use of pay history include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Vermont, Washington, and Wisconsin.
Some of these laws prohibit employers from using pay history to determine pay even if the applicant voluntarily shares that information. Other laws make it illegal for employers to discipline workers who discuss pay with others in the workplace. The purpose of these laws is to combat pay discrimination. "Salary history bans" hrdrive.com (Jul. 10, 2019).
Commentary and Checklist
It is a best practice to avoid asking questions about an applicant's previous pay. Even in a jurisdiction without a law prohibiting such questions, if you don't ask, you don't know, and you can avoid allegations that you used that information in an illegal, discriminatory manner.
There are other questions to avoid during an interview. For example, asking an applicant's age, on a job application or in an interview, is not illegal; however, if you refrain from asking, you cannot be successfully accused of using that information to commit age discrimination.
Questions like, "Are you planning on having children?"; "Do you have a boyfriend?"; or "Are you married?" can lead to gender discrimination claims. Also, refrain from referring to race, ethnicity, or national origin in an interview. Don't ask applicants "where they were born" or "where they are from".
Religious discrimination claims can be avoided by refraining from asking whether an applicant has any religious affiliation and if so, what it is.
Finally, refrain from asking an applicant if he or she has any disabilities, and, even if the applicant has an obvious one, don't refer to it. Avoid stating things like, "I notice you are limping. What's wrong with you?" or "Have you ever been treated by a psychiatrist?"
How can those who hire others manage their interviews to avoid these pitfalls?
- Plan your interview.
- Know which questions you want answered, but prepare to be flexible, too.
- Know as much as you can about the applicant before you meet him or her.
- Have a written job description ready. This can be used legally to avoid disability discrimination, for example. Ask the applicant to review it and then ask if he or she can perform all the job duties. If the answer is "yes," take the applicant at his or her word. If the answer is "No, to perform job duty number five, I would need a reasonable accommodation," then you know to refer the applicant to those in your organization who manage reasonable accommodations.