As labor attorneys in Columbia, South Carolina, we advise employers regarding the types of questions they can ask during a job interview. A common question in interviews with job candidates includes their wage-earning history. Employers frequently ask this question to begin salary negotiations and to understand whether the employer can afford to hire the candidate. In January 2017, Philadelphia became the first city to ban this question in job interviews. Massachusetts passed a similar law in 2016. While employers interviewing candidates in South Carolina may continue to ask this question, Massachusetts’ and Philadelphia’s new laws may offer a glimpse into future regulations and rules on interviewing and hiring practices.

What questions are permissible in a job interview?

Employers ask a variety of questions when interviewing candidates to determine which candidate will be the best fit for the job. Questions are usually designed to determine the candidate’s reliability, references, education, and qualifications. Permissible questions include whether a candidate can work particular days of the week or hours of the day that are pertinent to the job requirements (instead of whether the employee has children and what is his or her child care arrangement). An employer can ask whether a worker is legally eligible to work in the United States and whether they have worked under a different name (instead of where they are from or what their maiden name is). An appropriate interview question would be whether the candidate has a bachelor’s degree or whether they are over eighteen years of age (instead of what year they graduated from college or how old they are). These questions asked in this manner give the employer an idea of the candidate’s qualifications for the position, but do not require the candidate to reveal personal information about himself or herself that could appear to affect the employer’s hiring choices. Though not all questions that are discouraged are illegal, they may open an employer to liability for discrimination under the Civil Rights Act.

Why is an employer prevented from asking certain questions during an interview?

Title VII of the Civil Rights Act prohibits employment discrimination. Title VII was also designed to prevent discrimination in hiring candidates for jobs. Questions that reveal personal information about a candidate and that do not pertain to his or her ability to effectively do the job can be considered discriminatory. Questions that may give information about a person’s gender, appearance, race, age, religion, or family life are not to be asked pursuant to Title VII because an employer may make a hiring decision based on that personal information even though it is completely unrelated to the candidate’s ability to do the job. Although it may feel like small talk, an interviewer should never ask a female candidate whether she has children. If the position were offered to another candidate who did not have children, that woman may have a claim for discrimination based on that question. Historically, it was permissible to ask a candidate about his or her pay in previous jobs. New laws in Massachusetts and Philadelphia now prohibit this practice.

The ban on salary questions during a job interview

In late January 2017, Philadelphia’s mayor signed a provision that prohibits employers in the city from asking job applicants about their previous salary wages. Over the summer of 2016, Massachusetts passed a similar law state-wide. The goal of these provisions is to decrease the wage gap between women and men. Lawmakers’ theory is that if women are paid less than men simply because they are women and if hiring personnel have no wage history upon which to base salary offers, the offers to men and women will begin to equalize. According to figures reported by the Census Bureau, women are paid 79 cents for every dollar that men earn. State legislatures in New Jersey and Pennsylvania also have bills pending on this matter.

To ask or not to ask

The new laws emerging in the northeast part of the country banning questions about salary histories have not yet been legally challenged. First Amendment free speech protection issues may arise and be weighed against equal pay arguments. For now, in South Carolina, employers may continue to ask questions regarding salary history in job interviews. However, the question may not be fair game for long and may create equal pay liability for businesses. For guidance on ensuring your employees are compensated fairly and without bias and for assistance crafting interview questions that stay within the limits of the law, contact experienced employment lawyers at Gignilliat, Savitz, and Bettis, LLP.