California: New FEHA Pre-Employment Rules Effective July 1st

The California Fair Employment and Housing Council (FEHC) recently updated regulations under the Fair Employment and Housing Act (FEHA), which are set to take effect July 1^st. Specifically, the regulations impact pre-employment practices and discrimination standards.

Pre-employment inquiries regarding an applicant’s availability for work on certain days and times, in general as well as for work on weekends or evenings, cannot be used to learn the applicant’s religious creed, disability, or medical condition. Employers must clearly communicate that an applicant need not disclose any scheduling restrictions based on legally protected grounds if making these types of inquiries. The disclaimer should be provided at the time it is requested, either verbally or in an employment application. The rules provide sample disclaimer language, such as, “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” Further, online application technology cannot limit or screen out applicants based on their schedule unless it is job-related and consistent with business necessity and the online application technology includes a mechanism for the applicant to request an accommodation.

Similarly, unless age is a bona fide occupational qualification for the position at issue, pre-employment inquiries that would result in the direct or indirect identification of individuals on the basis of age are prohibited, such as requests for age, date of birth, or graduation dates. This applies to job applications and interviews. Employers must provide equal consideration of individuals in the pre-employment process, and cannot discriminate against someone who is age 40 or older. Moreover, use of online job applications that require entry of age in order to access or complete an application, or the use of drop-down menus that contain age-based cut-off dates or utilize automated selection criteria or algorithms that have the effect of screening out applicants age 40 and older are prohibited. Use of online application technology that limits or screens out older applicants is discriminatory unless age is a bona fide occupational qualification.

Additionally, employers cannot refuse to consider applicants because they are age 40 or older. Examples of unlawful requirements 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. Employers are prohibited from advertising jobs that express a preference for individuals under 40 or a limitation against individuals age 40 or older. Examples of prohibited advertisements include those that designate a preferred applicant age range or that include terms such as young, college student, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.

The regulations also add a new presumption of age discrimination when denying employment or an employment benefit if a facially neutral practice has an adverse impact on an applicant or employee age 40 or older, unless the practice is job-related and consistent with business necessity. In the context of layoffs or salary reduction efforts that have an adverse impact on employees age 40 or older, an employer’s preference to retain lower paid workers, alone, is insufficient to overcome the presumption. The practice may still be impermissible, even where it is job-related and consistent with business necessity, where it is shown that an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.

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