Newly revised anti-employment discrimination regulations, effective July 1, 2020, focus on pre-employment practices that likely are common in many industries. Employers should review application materials and hiring practices to ensure compliance with the new rules.

Background

The California Fair Employment and Housing Act prohibits employment discrimination, harassment, and retaliation based on race, sex, age, religion, disability, and several other criteria.  The law prohibits not only intentional discrimination, but also employment practices that have an adverse impact on members of protected groups. Unlawful discrimination can come in many forms, including recruiting and hiring practices.

The California Fair Employment and Housing Council is the agency responsible for issuing regulations interpreting the act. The Council recently issued revisions to certain regulations with respect to hiring practices that may exclude or screen out applicants based on age, disability, or religion.

Limits on Questions About Availability

Certain pre-employment inquiries to applicants obviously are illegal.  For example, an employment application cannot ask an applicant to disclose her race because an employer naturally may not take race into account when considering an applicant.

But pre-employment inquiries may be unlawful even if they do not directly request an applicant’s membership in a protected group. For example, asking for the year an applicant graduated high school is considered illegal, because the question indirectly calls for the applicant’s age. Asking for a “maiden name” reveals marital status and, potentially, ethnicity.

The Fair Employment and Housing Council’s revised regulations address pre-employment questions related to the applicant’s availability for work. Although employers may have a bona fide interest in knowing when a worker can work, the agency concluded that employers unlawfully may use such information to exclude applicants based on their religious practices, disability or medical condition.

The new regulation, 2 Cal. Code Regs. § 11016(b)(B), provides: “Pre-employment inquiries regarding an applicant’s availability for work on certain days and times shall not be used to ascertain the applicant’s religious creed, disability, or medical condition . . . .”  That, of course, already is the law. An employer cannot ask whether an applicant can work on Saturdays for the purpose of learning if the applicant observes the Sabbath, for example.

To address the potential for misuse of an applicant’s availability, the regulation imposes a new requirement. Employers that ask for availability must “clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds . . . . “ The regulation suggests a sample disclaimer paragraph.

Given the new regulations, application forms must be revised, and hiring personnel must be trained to comply with the new rules. Employers that must fill positions on certain days may still do so, but must be prepared to justify asking applicants for their work availability. Employers that need not hire workers for specific days should consider removing these questions from application materials.

Technology

Many employers have turned to technology to help compile applicant materials. The new regulations address electronic systems that exclude applicants based on responses to questions about availability for work. Such systems are unlawful unless the inquiries are “job related and consistent with business necessity.” That is because excluding applicants based on unavailability on Sunday, for example, may have an adverse impact based on religion. In addition, such systems must be programmed to allow a request for accommodation.

The “job-related and business necessity” defense to an adverse impact claim  is a difficult standard to meet. Employers that operate only on Saturdays and Sundays, for example, should easily be able to establish that Saturday and Sunday work are essential and the questions therefore are sufficiently important. When a job posting is for a unique job position, work hours may be more important as well. In other cases, though, employers must consider how scheduling questions are justifiable at the application stage.

Advertising

Agencies such as the Equal Employment Opportunity Commission and Department of Fair Employment and Housing have long prohibited discriminatory advertising as unlawful under anti-discrimination laws. For example, a statement in an advertisement that  “women need not apply” is per se sex discrimination.

Regarding age discrimination, existing regulations have long  prohibited employers from seeking applicants’ age, or even information likely to disclose their age. For that reason, employers should not ask for the applicant’s date of birth, high school graduation date, or other information that allows the employer to calculate the applicant’s age. With respect to advertising, existing regulations already prohibit recruiting for candidates using words such as “boy,” “girl,” “young,” or other words reasonably suggesting a preference for workers under the age of 40.

The revised regulations address more subtle advertising and recruiting practices that may allow employers to engage in unconscious or intentional age discrimination. The Fair Employment and Housing Council appears to be especially concerned with exclusion of applicants from the modern, high technology workforce.

For example, the new language specifies that unlawful job advertising “include: a maximum experience limitation; a requirement that candidates be ‘digital natives’ (individuals who grew up using technology from an early age); or a requirement that candidates maintain a college-affiliated email address.”

These new regulations are especially timely given the recent rise in unemployment. Employers unable to fill open jobs only a few months ago now will have their choice from among qualified applicants. As competition for open positions increases for the first time in years, disappointed job seekers may challenge hiring decisions by alleging discrimination. To prevent such claims, employers must ensure their recruiting and hiring practices conform with current laws and regulations.

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