New Fair Employment and Housing Act (FEHA) regulations clarify what pre-employment practices (like job applications, advertisements and pre-employment inquiries) constitute age and religious creed based employment discrimination. The new regulations don’t go into effect until July 1, 2020, but employers should review their pre-employment practices ahead of time, especially as employers may be increasing recruiting and hiring activities this summer as they reopen from the COVID-19 lockdown.
Pre-Employment Inquiries and Job Applications
The revised regulations create a new subsection for pre-employment inquiries and applications so employers will need to be mindful of how they request information from job applicants. The Fair Employment and Housing Council (FEHC), who developed the new regulations, is concerned that certain pre-employment inquiries and job applications may be used to screen out applicants based on their religious creed, disability, medical conditions and age.
Employers can’t request scheduling information to ascertain an applicant’s religious creed, disability or medical condition. Any scheduling inquiry must clearly communicate that the applicant doesn’t need to disclose any scheduling restrictions based on legally protected grounds; for example, “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?”
This requirement also applies to job applications, both physical and electronic. The regulations state that online applications that screen out applicants based on their schedule may have a disparate impact on applicants based on religious creed, disability or medical condition. Such a practice is unlawful unless job related and consistent with business necessity. An employer’s online application technology must include a mechanism for the applicant to request an accommodation.
Additionally, the new regulations address age discrimination for pre-employment inquiries and job applications. Examples of prohibited pre-employment inquiries now include requests for applicants’ age, date of birth or graduation dates. The regulations specifically prohibited online applications that require applicants to enter their age in order to access or complete an application, or use drop-down menus that contain age-based cut-off dates or utilize automated section criteria or algorithms that have the effect of screening out applicants age 40 and older.
Although most employers are aware of these pre-employment inquiry restrictions, they should review their practices to ensure they comply, including any online application system. Many employers use third-party vendors for their online application system, some of which are not based in California and may not adhere to California’s more stringent requirements.
Recruiting and Advertising
The new FEHA regulations also substantially limit the language that can be used in recruiting and advertising, prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over” unless age is a bona fide occupational qualification for the position.
For example, employers can’t include maximum experience limitations and may not use terms like “young,” “recent college graduate,” or “digital native,” which implies the person grew up using technology.
The regulation’s broad language may create a slippery slope, calling into question a variety of terms commonly used in job advertisements. Employers looking for “fresh” ideas, “new” perspectives for the “future,” someone “adaptable” who “tries new approaches,” or the “leader of tomorrow” (all examples from current advertisements) may find using this type of language problematic.
Presumption of Age Discrimination
Finally, the revised regulations create a presumption of age discrimination for practices that have an adverse impact on applicants and employees age 40 or over, even if the practice or policy looks neutral and does not specifically or expressly target older workers.
To overcome this, employers must show that the practice is “job related and consistent with business necessity.” This means it may be easier for employees to bring age discrimination complaints and harder for employers to defend against them.
That’s why it’s particularly important for employers to examine their practices and policies that might have a disparate impact on workers age 40 and older and to ensure their pre-employment practices are compliant with FEHA regulations.