Seyfarth Synopsis: Recent California legislation, including laws banning questions about salary history and criminal convictions, has bought new interview jitters for employers. These new laws, along with the Fair Employment and Housing Act’s prohibitions against questions going to an applicant’s protected status, confirms the point that there is such a thing as a “bad interview question.” In this ever-changing legal landscape, it is important for California employers to know what they can and cannot ask candidates in a job interview.

Although Michael Scott’s fictional character in The Office would have us believe there is no such thing as a “bad question,” that expression holds less true in California today than ever. California’s legislative updates in the last year have made job interviews more perilous than ever for the unwary employer.

The Legislature has recently introduced prohibitions on salary history and criminal conviction questions for certain employers. What is more, the FEHA prohibits questions like Michael Scott’s zinger, “Why are you the way that you are?”—a question that could go to various protected statuses, such as race, national origin, sex, nationality, and gender.

While such restrictions seem straightforward, implementing them is not always a no-brainer. Indeed, according to one survey, one in five hiring managers admitted that they have asked a question in a job interview only to find out later that it was illegal to ask.

So if you are looking to recruit for a temporary role, or hiring to fill the next coveted regional manager role at Dunder Mifflin, certain interview questions can have you breaking a sweat in California in 2019:

  1. Have You Ever Been Convicted of a Crime?

What used to be a common check-the-box question on employment applications is now illegal to ask before the employment offer stage. In late 2017, California joined several states in introducing “ban the box” laws to reduce barriers to applicants in the pre-hiring stage. Under AB 1008, California employers with more than five employees now must not

  • include on any job application questions that seek the disclosure of an applicant’s conviction history,
  • ask about or consider the conviction history of an applicant until he/she has received a conditional offer, or
  • consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions when conducting a conviction history background check.
  • San Francisco’s version of the “ban the box” legislation provides even greater protections to job candidates and includes stiff penalties for violations.
  1. How Much Do You Currently Make?

With the passage of AB 168, effective January 1, 2018, California employers must not ask job applicants for “salary history information” or rely on that information in deciding whether to offer a job and how much to pay. But if the applicant voluntarily discloses salary history, the employer may consider or rely on that information in setting salary so long as prior salary is not the only factor justifying any disparity in pay.

Under recent legislation clarifying the scope of AB 168, employers can ask about an applicant’s salary expectations for the position.

  1. Where Are You From?

The innocent icebreaker questions, “Where were you born?” or “Where are you from?” or “How long have you lived in the U.S.?” can land employers in hot water. Such questions, though seemingly offhanded, can be interpreted as questions about the applicant’s national origin.

Also, California’s Labor and Workforce Development Agency has made it clear that the state’s labor protections apply to all employees—regardless of their immigration status. Thus, you should stay clear of questions about a candidate’s citizenship (unless U.S. citizenship is a legal job requirement). You can, however, ask whether the applicant has a legal right to work in the United States, so long as you do not do so on a discriminatory basis.

  1. When Did You Graduate High School?

Questions about a candidate’s age are prohibited under both California’s FEHA and the federal Age Discrimination in Employment Act. Thus, employers should stay away from questions that could reveal a candidate’s age, like “What year did you graduate high school?”

You may ask a candidate’s age, however, if the job has a minimum age requirement, for example, if it involves serving alcohol.

  1. Are You Married?

Any questions related to parenthood or marital status are off limits. Prohibited questions include whether an applicant is married, pregnant, or plans to be in the future. Even the innocuous question, “What does your spouse do?” should be avoided as it could be seen as a round-about way of getting to the candidate’s marital status. It’s perfectly OK, though, to ask such questions after the candidate has been hired.

Workplace Solutions:

You may find yourself at an interview in the predicament Michael Scott describes best, “Sometimes I’ll start a sentence and I don’t even know where it’s going. I just hope I find it along the way.” Often people develop an easy rapport at an interview, making it hard to “unsay” questions—even illegal ones. Take note of the following guidelines to ace that next interview so you can indeed be the “World’s Best Boss.”

  • Read the fact sheet developed by California’s Department of Fair Employment and Housing, which offers guidance on questions employers can ask applicants.
  • To the extent feasible, prepare questions in advance, to help avoid drifting off into forbidden territory.
  • Train job interviewers and HR personnel on what interview questions are illegal and improper.

If you have any questions about this guidance or about illegal pre-hiring questions in California, feel free to contact your favorite Seyfarth attorney.

Seyfarth Synopsis: Employers, take note—the long-awaited, new FEHA regulations related to national origin are about to take effect! Come July 1, 2018, new regulations on national origin under California’s Fair Employment and Housing Act reflect a broad definition of national origin, codify existing case law, and intensify already strict regulations prohibiting harassment, discrimination, and retaliation based on national origin. The regulations will apply to applicants and employees, irrespective of documentation status. (The prior FEHC regulations on national origin addressed only English-only policies and incorporated defenses generally applicable to other protected bases.)

Your Eyes Can Deceive You. Don’t Trust Them.

Whether it’s the sandy dunes of Tatooine, or the lush forest of Endor, everyone has a national origin, even if it’s in a galaxy far, far away. The new regulations, which reflect currently existing California law, expansively define “national origin” to include an individual’s or ancestor’s actual or perceived:

  • physical, cultural, or linguistic characteristics associated with a national origin group,
  • marriage to or association with person of a national origin group,
  • tribal affiliation,
  • membership in or association with an organization identified with or seeking to promote the interest of a national origin group,
  • attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group, and
  • name associated with a national origin group.

Lest anyone try to find some wriggle room here, the regulations emphasize that “national origin groups include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.” This might mean that your newly married cousin now claiming Wookiee heritage may actually be protected under the new regulations.

Do You Know Droidspeak?

Adhering to case law and statutory provisions, the new regulations address language restriction policies—including English-only policies—only under the very narrow circumstances already set forth in the FEHA:

  • the language restriction is justified by “business necessity,”
  • the language restriction is narrowly tailored, and
  • the employer has told employees about how and when the language restriction applies and what happens to employees who violate it.

The regulations, following the elements set forth in FEHA, define “business necessity” so narrowly that most employers may find it difficult to show. A language restriction is justified by business necessity only where:

  1. the restriction is necessary to the safe and efficient operation of the business,
  2. the restriction effectively fulfills the business purpose it is supposed to serve, and
  3. there is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

The regulations state that a language restriction is not justified if it either promotes business convenience or is due in part to customer or co-worker preference. In any event, English-only restrictions cannot apply to employees’ non-work time (such as breaks, lunch, unpaid employer-sponsored events).

Discrimination against an employee’s accent may also be national origin discrimination, unless the accent interferes materially with the ability to perform the job in question.

Requiring English proficiency may also be discriminatory, absent “business necessity,” to which the regulations make these factors relevant:

  • the type of proficiency required,
  • the degree of proficiency required, and the nature, and
  • the job duties of the position.

The regulations allow that an employer may ask applicants or employees about their ability to speak, read, write, or understand any language (including non-English languages), but inquiries must be justified by a business necessity.

Aren’t You A Little Short For An X-Wing Pilot?

Giving hope to every Ewok who ever dreamed of being an X-Wing Pilot, the new regulations also clarify (as did prior FEHC selection criteria regulations) that height and weight requirements which create a disparate impact on the basis of national origin are forbidden.

Thus, come July 1, the new regulations clarify and forbid height and weight requirements that disproportionally exclude members of a particular national origin from a position, unless, of course, the requirements are job related and advance a business necessity. Even then, the challenged requirement could be unlawful if the requirement’s purpose could be more effectively achieved with less discriminatory measures.

It is also unlawful for an employer or other covered entity to seek, request, or refer applicant or employees based on national origin to assigned positions, facilities, or geographical areas of employment based on national origin, unless the employers have a “permissible defense” such as job relatedness or a bona fide occupational qualification.

These new regulations apply to undocumented applicants and employees just as they would with any other applicant. Any inquiry into an applicant or employee’s immigration status is unlawful unless there is clear and convincing evidence that the inquiry was needed to comply with federal immigration law.

Wait, I Know That Laugh …

Some FEHA regulations remain unchanged, such as those forbidding discrimination, harassment, and retaliation based upon national origin. The use of derogatory language or slurs based on national origin, and threatening to contact the immigration authorities about an individual’s immigration status also remain unlawful.

Protections for those holding driver’s licenses issued pursuant to Vehicle Code section 12801.9 also remain unchanged. That provision allows those who are not in the country legally to obtain a driver’s license if they can provide valid proof of identity and California residency. Any discrimination against one holding such a license may be considered national origin discrimination under FEHA.

And, in the same vein, employers must not require applicants or employees to present a driver’s license, unless the law requires the license or permits the employer’s requirement. Further, failing to apply the requirement uniformly or for a legitimate business purpose may amount to discrimination because of national origin.

Employers, Take The High Ground:

Employers seeking to limit FEHA exposure should heed these takeaways:

  • National origin is broadly defined to include not just an individual’s national origin, but the individual’s spouse or those with whom the individual is associated, and any person’s perceived national origin.
  • Identify and modify English-only polices to ensure they comply with the strict requirements set out in the regulations.
  • Implement recruitment techniques to safeguard against excluding potential applicants based upon national origin.
  • Ensure that employment is based on objective criteria, to minimize discrimination claims.
  • Remember that customer preference is not a justification for any discrimination based on national origin.

Workplace Solutions: Complying with the new regulations may seem like getting through the Kessel run in 12 parsecs, but with some preparation, and a little help from the Seyfarth force, compliance is certainly manageable. For more advice on how these regulations may affect your business, reach out to your favorite Seyfarth attorney.

Seyfarth Synopsis: The Fair Employment and Housing Council issues regulations to implement California’s employment and housing anti-discrimination laws, including the FEHA, the CFRA, and the Unruh and Ralph Civil Rights Acts. The FEHC also conducts inquiries and holds hearings on various civil rights issues. The latest FEHC meeting was held on December 11, 2017. Our own correspondent was there, and files this report of coming regulatory attractions in the areas of age discrimination, religious creed discrimination, and national origin discrimination.

Age Discrimination. The Council discussed the current working draft of 2 C.C.R. § 11076, on age discrimination. The proposed changes would add language defining how to establish a presumption of discrimination by showing disparate treatment of applicants or employees over the age of 40, unless the treatment was tied to a legitimate overriding business necessity, necessary to the safe and efficient operation of the business. An employer would have to show a legitimate overriding business necessity, as opposed to the current “legitimate business reason” for any disparate treatment. The proposed regulations further note: “the mere preference of retaining lower paid workers alone is insufficient to negate a presumption of discrimination.”

This language has not yet been adopted and members of the Council seemed amenable to re-working the language for clarity. The Council members also decided that more research about other jurisdictions’ approaches to regulating workplace age discrimination would be good. This draft is likely to benefit from further revision.

Religious Creed Discrimination. As to a new potential draft of regulations related to religious creed discrimination, the Council heard concerns about pre-employment religious inquiries, such as religious scheduling needs. One commenter suggested that the religious accommodation process be drafted to mirror the interactive process used in disability discussions, suggesting that employers ask prospective employees whether they could perform the essential job functions, with or without a religious accommodation.

The Council did not seem particularly interested in this type of language. Some voiced concerns with the timing of such requests, and whether they might have the deleterious effect of actually weeding out potential employees by flagging them as “religious.” Stay tuned for more comment and revision to these proposed regs.

National Origin Discrimination. As to the final version of new national origin discrimination regulations, notable public comments concerned a section addressing language usage in the workplace. Some commenters feared that a per se ban on language restrictions in the workplace, unless justified by business necessity, could raise safety concerns. For example, during an emergency, employees speaking only in a foreign language on their meal break could present a safety problem if all employees could not understand what was going on. The Council did not seem entirely persuaded by the commenter’s arguments, but the discussion did prompt recognition that overly restrictive language regulation may present problems.

Instead of adopting or approving the regulations as proposed, a contested vote among Council members ensued. Two members voted to adopt the regulation as is, while the rest voted for a renewed notice period and another round of public comments. Overall, there was some lingering hesitation on how this new regulation may affect employers.

Regs Re: Criminal History, the California Family Rights Act, and the New Parent Leave Act. Modifications considered by the FEHC included changing the gender pronouns to be gender neutral, and changing language to reflect the exact language of the CFRA and the NPLA. The council voted to move and adopt these proposed amendments for a public comment period, catapulting them towards final adoption.

Other Happenings

Gender Neutral Signage. The Council also discussed emergency regulations already in place regarding gender-neutral facility signage. A subcommittee had already met with Cal/OSHA to discuss regulatory language to harmonize the regulations under the occupational safety laws, the FEHA, and the new legislation regarding gender neutral bathrooms for single occupancy restrooms. The Council is working with Cal/OSHA to ensure consistency and enforcement.

These new proposed regulations follow hard on the heels of regulations promulgated effective July 1, 2017, concerning Transgender Identity and Expression, and Consideration of Criminal History in Employment Decisions.

We will keep you apprised of further FEHC activity on the new proposals. The next FEHC meeting is scheduled for April 4, 2018. For advice on how these regulations may affect your business, or if you would like to discuss how you can participate with us in making public comments, please reach out to your favorite Seyfarth attorney.

Seyfarth Synopsis: On July 17, 2017, the California Fair Employment and Housing Council (FEHC) heard public comments on its proposed regulations covering national origin discrimination under the FEHA. Discussion centered on employer-imposed language restrictions, English proficiency requirements, and immigration-related employment practices. Look for final regulations later this year. 

The FEHC kicked off its third meeting of the year, this time in San Francisco. Prominent on the agenda: the proposed and rapidly advancing national origin discrimination regulations. As stated in the FEHC’s notice of the meeting: “The overall objective of the proposed amendments is to describe how the [FEHA] applies to the protected class of national origin in the employment context, primarily by centralizing and codifying existing law, clarifying terms, and making technical corrections.”

A call to enact these regulations first came from Legal Aid at Work (an employee-oriented legal services organization formerly known as the Legal Aid Society, Employment Law Center), during the FEHC’s August 31, 2016 hearing. The FEHC quickly created a subcommittee and drafted regulations, which we previously reported on here, that largely mirrored the EEOC’s guidance on national origin discrimination.

At the July 17 hearing, public comments revolved around (a) language restrictions (“English only” rules), (b) employer requirements for English language proficiency, (c) discovery as to an individual’s immigration status during the liability phase of any lawsuit or other proceeding to enforce the FEHA’s prohibition of national origin discrimination, and (d) expanding the definition of what constitutes harassment on the basis of national origin. The only public comments received at the hearing were from employee-leaning individuals and groups.

English only. The draft regulations would make it an unlawful employment practice for an employer to adopt a policy that creates an “English only” rule, unless (1) the rule is job-related and consistent with business necessity, (2) the rule is narrowly tailored, and (3) employees get effective notice of when and where the rule applies and what consequences result from a violation.

The regulations would also provide that an English-only policy would not be valid simply for promoting business convenience or reflecting customer preference. Representatives of Legal Aid at Work emphasized at the hearing that the latter should be amended to state a co-worker preference, not the customer’s.

Further, the regulations would explicitly presume that English-only rules violate FEHA unless the employer can prove “business necessity”—defined narrowly as “an overriding legitimate business purpose” that is necessary to the safe and efficient operation of the business, where the policy effectively serves that purpose, and where there is no alternative to the language restriction that would serve the business purpose as well, with less discriminatory impact. One commentator at the hearing argued that the FEHC should expand this presumption to find a violation if there is no effective employee notification about the language restrictions. Legal Aid at Work also called for the FEHC to draft a new section to address how an English-proficiency requirement relates to an employee’s ability to perform the job. These folks would like CA to distinguish itself from the reasoning of Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, in which the court approved an employer’s requirement for verbal and written English proficiency in part because English was the dominant language in the area.

Discovery of Immigration Status. The FEHC also heard public comments to clarify the complex rule about when discovery into an individual’s immigration status is allowed during the liability phase of a proceeding. The proposed regulations would permit such discovery “only when the person seeking to make the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.” The commentators argued that mere possession (or lack) of a driver’s license would not constitute “clear and convincing evidence,” as all California residents are eligible to receive a license, regardless of immigration status.

Expansion of “harassment.” A representative of the California Employment Lawyers Association (a group of plaintiffs’ lawyers calling themselves an employee-rights group) called for expansion of the harassment portion of the regulations, to include specific reference to banning creation of a hostile work environment on the basis of national origin. Speakers also asked that the FEHC expand what would constitute as per se harassment to include deportation threats against an individual’s blended family members (i.e., step-parents, step-aunts and uncles, and step-children).

The comment period for the proposed regulations closed at 5 p.m. on July 17th. We anticipate the FEHC will consider all comments before issuing a final statement of reasons and potentially revising the proposed regulations.

We will keep you apprised of what the FEHC opines next on the topic of national origin regulation. For advice on how these regulations may affect your business, reach out to your favorite Seyfarth attorney.

Edited by Colleen Regan.

Seyfarth Synopsis: On March 30, 2017, the California Fair Employment and Housing Council (“FEHC”) considered proposed regulations on transgender employees. The FEHC also discussed draft regulations on national origin discrimination in the workplace.

Transgender Identity. On March 30, 2017, the FEHC, convened in Sacramento for its second meeting of the year, voted unanimously to adopt proposed regulations on transgender identity and expression, which will go to the Office of Administrative Law for approval. We expect a final text in July. The FEHC first proposed these amended regulations in 2016, which we covered here.

Some highlights: the amended proposed regs would

  • prohibit employers from requiring applicants to disclose their sex, gender, gender identity or expression,
  • protect transitioning employees by expanding the definitions of gender identity and expression,
  • ensure that employees are addressed by their preferred name, gender, and pronoun, and
  • require employers to provide equal access to comparable, safe, and adequate bathrooms, locker rooms, and similar facilities.

Employers can familiarize themselves with the approved regulations now to anticipate questions that may arise in this context.

The FEHC heard public comment over a perceived conflict in bathroom signage required by the proposed regulations and pre-existing Cal-OSHA regulations. The proposed FEHC regulations, consistent with recently enacted legislation (discussed here), require that single-user bathrooms have gender-neutral signage. But the Cal-OSHA regulation, which predates both the FEHC regs and the recent legislation, calls for single-user bathrooms to be for a single gender. The conflict is one of perception only, as the Department of Industrial Relations has clarified that Cal-OSHA will not enforce its rule, and instead will follow the gender-neutral requirement found in the statute (and the proposed FEHC regs). We expect that other agencies may adopt the DIR’s approach, favoring transgender protections over conflicting pre-existing regulations.

Kevin Kish, Director of the Department of Fair Employment and Housing, confirmed the DFEH would consult with the Labor and Workforce Development Agency and Cal-OSHA to ensure consistency in the implementation and enforcement of the regulations.

National Origin Discrimination. The FEHC has also drafted proposed regulations regarding national origin discrimination in the workplace, following recommendations by Legal Aid at Work. The proposed regulations are still in their early stages; as yet, there has been no formal notice of the proposed regulations or a public hearing.

The proposed regulations largely track the EEOC’s new guidance on national origin, which we summarized in our Employment Law Lookout blog here. The draft FEHC regulations address these issues:

  • Defining national origin to include place of birth or ancestor’s place of birth, association or perceived association with a person of a national origin group or ethnicity, Native American Tribe, language, and accent.
  • Harassment and retaliation against undocumented workers.
  • Discrimination based on immigration status, accent, or English proficiency.
  • Workplace language restrictions.

Public comments have addressed the proposed provisions that would curb employer inquiry into an individual’s immigration status. The proposed regulations would permit such an inquiry only where clear and convincing evidence shows the inquiry is needed to comply with federal law. Based on further comment by Legal Aid at Work, we anticipate that further modifications may provide guidance on workplace language policies.

What’s Next? We expect to see more activity from the FEHC in the months ahead. The FEHC will likely revise its proposed regulations on national original discrimination before it issues formal notice of proposed action of the regulation. The FEHC also plans to expand its outreach efforts, seeking further comment from the public and civil rights groups to shape the FEHC’s future agenda. We will continue to monitor and report further developments.

Edited by Colleen Regan.

With the 2016 hiring season well under way, California employers are well advised to reconsider their use of criminal records in making hiring decisions.  Although employers are probably aware of “ban the box” and other legislative initiatives, they may not be as familiar with the liability exposure they may create by when using blanket policies to reject applicants because of their criminal histories.  On February 19, 2016, the California Department of Fair Employment and Housing (“DFEH”) announced proposed regulations governing the consideration of criminal history in employment decisions, which will enumerate limitations to the use of criminal history.

According to an EEOC survey, 92% of employers subject at least some candidates to criminal background checks.  Since issuing guidelines on the use of criminal records in 2012, the EEOC has embarked on an aggressive campaign against employer use of criminal records in employment prescreening.  While some EEOC lawsuits have failed, others have resulted in multimillion dollar settlements, such as a $3.13 million prelawsuit settlement with Pepsi.  Each time, the EEOC has focused on whether the employer’s reliance on criminal records has an adverse impact on applicants with protected characteristics, such as race, national origin, or disability.  Of particular note to California employers, the California Department of Fair Employment and Housing (“DFEH”), has recently become more active in pursuing individual and class-based claims, under the California Fair Employment and Housing Act (“FEHA”), California’s counterpart to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act (“ADA”).

In recent years, we’ve seen individual and class actions asserting indirect discrimination, or “disparate impact” discrimination, primarily involving race and national origin.  Because about  one-sixth to one-fourth of individuals with a criminal record also have a diagnosable mental disability, we anticipate increased litigation by job applicants with disabilities who have a criminal record.  The disabled community has faced historical exclusion from the workplace, and a disproportionate number of them have criminal histories.  And, as mentioned, the DFEH has now become more active in initiating such cases.  Thus, when employers adopt across-the-board hiring practices that reject candidates with criminal records, they may be exposing themselves to lawsuits under the ADA or the FEHA.  This risk is especially prominent in California, because the FEHA defines “disability” much more broadly than the ADA does.  California law defines a disability as any mental or physiological disorders that limit major life activities, as opposed to the ADA definition, which requires that the condition substantially limit major life activities.

On the other side, employers have justifiable reasons for hiring practices that consider criminal background.  Employers must guard against theft and fraud and try to avoid liability for  negligent hiring.

Employers thus may perceive a dilemma of (a) not considering criminal histories at all or (b) facing potential discrimination suits.  Though there are as many solutions as there are questions, the best practice has always been to ensure that a criminal history is not the sole reason to exclude a candidate, and to use it in conjunction with other business reasons.  Each candidate’s qualifications deserve individualized attention, with an awareness of potential disability issues. Employers would also be well advised to structure narrowly tailored hiring policies to ensure that they prevent not only racial discrimination, but disability discrimination.  Categorical exclusions based on a criminal record invite a host of potential risks of litigation under the ADA or FEHA that risk-averse employers will want to avoid.

Edited by Michael A. Wahlander.