FEHC Issues New Employment Regulations

On April 14, 2020, the California Fair Employment and Housing Council (“FEHC”) finalized a rulemaking action that implements, interprets, and makes specific the employment provisions of the Fair Employment and Housing Act (“FEHA”), most notably clarifying what pre-employment practices are now prohibited. The newly amended language clarifies what constitutes employment discrimination based on religious creed or age by including examples of disparate impacts and providing details regarding pre-employment inquiries, job applications, and advertisements. This action becomes effective July 1, 2020.

FEHC Amendments

The following list summarizes the FEHC’s amendments to the originally proposed text:

  • Antiquated, lengthy language replaced “minorities” with a more modern rendering: “an individual who is a member of an underrepresented protected class covered by [FEHA]”
  • Amends age discrimination to apply to individuals age 40 and older

PRE-EMPLOYMENT INQUIRIES AND SCHEDULE INFORMATION

  • Circumstances clarified regarding permitted pre-employment questions relating to the physical fitness, medical condition, physical condition, or medical history of applicants
  • Clarification that an application request for information related to schedule and availability for work may not be used to ascertain an applicant’s religious creed, disability, or medical condition
    • Ex: “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”
  • Renders online application technology that limits or screens out applicants based upon age a potential FEHA violation
    • Must include a mechanism for the applicant to request an accommodation
    • Clarifies that the prohibition against applications separated or coded includes both manual or electronic separating and coding
    • Entry of age in order to access or complete an online application or the use of drop-down menus that contain age-based cut-off dates now prohibited

ESTABLISHING AGE DISCRIMINATION

The new language establishes age discrimination if a facially neutral practice has an adverse impact on applicants or employees age 40 and older; in other words, age discrimination does not have to be intentional.

  • Business necessity affirmative defense properly rendered (i.e. “job-related and consistent with business necessity”), including in the context of layoffs or salary reduction efforts
  • A plaintiff may now show that “an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.”

RECRUITMENT AND ADVERTISING

  • Examples of unlawful requirements regarding age discrimination in recruitment: maximum experience limitation, requirement that candidates be ‘digital natives’[1], requirement that candidates maintain a college-affiliated email address
  • Eliminates the need to infer intent when analyzing the lawfulness of advertisements
    • Examples of unlawful language: “…young, college student, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.”
    • Examples of prohibited inquiries: “requests for age, date of birth, or graduation dates, excepting where age is bona fide occupational qualification.”

Recommendation

Requests for information that could lead to the disclosure of an applicant’s age are not unlawful, but any inquiries that deter or limit applicants based on age or religious creed are unlawful. Therefore, we recommend that employers review all application forms – provided in paper or via a website and including application software or technology – hiring materials, questionnaires, job postings, and any other marketing materials used for recruitment and advertising. All pre-employment materials should be revised according to the above provisions in order to be in compliance with the newly amended regulations regarding religious creed and age discrimination. All updates or revisions must be implemented prior to July 1, 2020.