Employers with employees in California should review policies and practices regarding consideration of criminal history in employment decisions as well as protections on the basis of gender identity, gender expression, and transgender status.
On July 1, new regulations affecting employers’ use of criminal background information take effect in California. All employers with employees in California should carefully review their policies and practices regarding consideration of criminal history in employment decisions to ensure compliance with the new regulations.
The regulations, issued by the Fair Employment and Housing Council, prohibit employers from asking about or considering certain kinds of criminal history entirely and set up a burden-shifting framework for adverse impact claims brought by employees based on an employer’s policy of considering criminal convictions.
Criminal History Items Prohibited from Consideration
Under the new regulations, employers are prohibited from considering certain types of criminal history or seeking this history from “the employee, applicant or a third party.” While most of these items are already prohibited for consideration in some capacity under existing law, the language of these regulations would prohibit employers from getting this information through third-party services. Prohibited items include the following:
Adverse Impact Burden-Shifting Framework
Under the regulations, consideration of criminal history, other than those items already prohibited, is not permitted when it would have an adverse impact on a protected class and the employer cannot prove that such consideration is job related or consistent with business necessity. The regulations set up a burden-shifting framework for bringing such “adverse action” claims:
Reminder as to Action Items for Employers
Employers should ensure that their policies regarding consideration of criminal history in employment decisions as well as all related job postings, application forms, and/or other recruiting materials are compliant and updated in accordance with the new regulations. If part of the hiring process includes using investigative consumer reports from an agency, the employer should request that prohibited items be excluded from such reports. In addition, employers may need to review and revise pre–adverse action notice and adverse action notice forms to comply with the notice requirements of the regulations. HR personnel and others involved in the hiring process should also understand any changes in policy.
Note: Additional Pending Legislation in California and Local Ban-the-Box Ordinances
In addition to the regulations already slated to take effect on July 1, there is legislation currently under consideration in California that would impose additional requirements if passed. The bill, AB 1008, would essentially make these regulations statutory and would add more criminal history items to the list of items an employer is prohibited from considering. In addition, many of the requirements for disclosure and notice of adverse action under the pending legislation are more specific and onerous, so employers should expect to revisit their compliance with the finalized language if it does pass. AB 1008 passed the assembly on June 1, and as of June 20 it has been re-referred to the California Senate Labor and Industrial Relations Committee.
In addition, there has been a proliferation of “ban the box” ordinances in local jurisdictions, such as San Francisco and Los Angeles, so employers with employees in jurisdictions with local ordinances must also comply with those ordinances.
In addition to reiterating the California Fair Employment and Housing Act’s existing protections on the basis of gender identity, gender expression, and transgender status, these regulations expand the definition of “gender identity,” which may include perceptions of gender identity, sex stereotyping, and those gender identities described as “a combination of male and female, neither male nor female,” and others. The regulations also provide protections against discrimination against individuals who are “transitioning,” and require employers to honor employees’ requests to be identified by a preferred gender, name, or pronoun. Definitional information regarding transitioning and other terms is included in the regulations.
Notably, employers may not request information regarding gender or sex-related information from applicants and employees, which may prove challenging in addressing fair pay act issues. The regulations, however, make it clear that employers who have affirmative action reporting or recordkeeping requirements, such as EEO-1 reports, may request applicants to self-identify on a voluntary basis.
Employers should also be aware that the new regulations place obligations on employers to ensure equal access to restrooms and other similar facilities regardless of gender identity, gender expression, or transgender status. These regulations bolster existing requirements that went into effect on March 1, 2017 related to gender-neutral signage for single-user toilet facilities.
Employers should review their policies to ensure that they are consistent with the definitions and regulatory requirements related to the Department of Fair Employment and Housing’s transgender regulations.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Barbara J. Miller
Alicia J. Farquhar
Christopher K. Ramsey