Interview Pitfalls: 5 Questions You Should Never Ask a Candidate

You think you’re just making polite small talk or gauging a candidate’s “fit,” but in the eyes of California law, you’re handing a plaintiff’s attorney the keys to your corporate bank account.

In California, the “intent” behind a question is irrelevant. If the inquiry probes into a protected characteristic, you have already created a presumption of bias.

At In Motion Law, we defend businesses against the fallout of these unscripted moments every day. To keep your company out of a deposition, here are five questions that must be purged from your interview scripts immediately.

1. “What was your previous salary?”

If you are still asking this, you are nearly a decade behind the law. Since 2018, California Labor Code § 432.3 has strictly prohibited employers from seeking an applicant’s salary history. Even in “casual” conversation, asking what a candidate made at their last gig is a violation.

By 2026, pay transparency laws (like SB 1162) have only tightened the screws. Employers with 15 or more employees must provide a good-faith pay scale in job postings. If you base an offer on what a candidate used to make rather than your posted range, you are begging for an equal pay lawsuit. Instead, ask for their salary expectations.

2. “When did you graduate from high school?”

This feels like an innocent way to build rapport or verify education, but it’s actually a back-door way to calculate a candidate’s age. The Fair Employment and Housing Act (FEHA) protects workers over 40 from discrimination.

Asking for a graduation date allows an interviewer to estimate birth years with dangerous accuracy. If you eventually hire a younger candidate, the older applicant can point to this question as evidence of age-related bias. If you need to verify education, simply ask if they have the required degree or certification.

3. “Are you a U.S. citizen?”

While you have a legal obligation to ensure your employees are authorized to work in the U.S., this specific question is a trap. It discriminates based on national origin and citizenship status.

Under California law, you should never ask about citizenship before a conditional offer is made. The correct, legally defensible approach is to ask: “Are you legally authorized to work in the United States?” and “Will you now or in the future require sponsorship for an employment visa?” Anything more specific is a liability.

4. “Do you have kids or plan to start a family soon?”

This is the “small talk” kiss of death. Questions about marital status, pregnancy, or childcare arrangements are prohibited because they disproportionately target women and suggest gender-based bias.

At In Motion Law, we’ve seen how one “friendly” question about family can turn a legitimate rejection into a high-stakes discrimination claim. As San Diego employer representation lawyers, we advise clients to keep the conversation strictly on the essential functions of the job.

5. “Have you ever been arrested?”

California’s Fair Chance Act (often called “Ban the Box”) prohibits nearly all employers from inquiring about criminal history until after a conditional offer of employment has been extended.

Even then, Section 12952 of the Government Code requires a rigorous “individualized assessment” before you can rescind an offer based on a conviction. You cannot ask about arrests that didn’t lead to convictions, sealed records, or participation in diversion programs. In 2026, the procedural requirements for background checks are so dense that a single misstep in the timing of your inquiry can trigger significant penalties.

It’s Time to Get Your Job Interview Questions in Order

At In Motion Law, we provide the proactive training and aggressive defense strategies needed to insulate your business from the predatory litigation environment in Southern California.

If you are concerned that your current interview protocols are exposing you to risk, or if you are currently facing a DFEH or EEOC complaint, do not wait for the situation to escalate. Contact In Motion Law today to schedule a consultation. Call at 619-693-8336 so we can help protect your bottom line.

Source:

leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=432.3.&lawCode=LAB