California FEHA Amendment: The Latest in “Ban the Box” Trends

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California’s Fair Employment and Housing Act has recently been updated – effective June 1, 2017 – to include additional provisions to protect applicants from discrimination during the hiring process based on criminal history. These new rules will affect both public and private employers, as well as landlords. The updates are largely centered on enforcing the Equal Employment Opportunity Commission’s (EEOC) guidance on the use of arrest and conviction records as part of the hiring decision.  Employers may not have policies that have an adverse impact on a person who is protected under the FEHA unless the policy is job related and consistent with business necessity.

While the FEHA amendment isn’t a “Ban the Box” law, I would categorize it within the Fair Chance legislative trend. This is because of its effort to limit the impact that criminal histories have on the hiring process.  These new legislative trends further the effort to shift focus away from a “tough on crime” philosophy to a more inclusive hiring process aimed at lowering the risk of discrimination and recidivism.

Incidentally, California also has a statewide “Ban the Box” law (A.B. 1008) currently under consideration. California has already “banned the box” for all public employers and a handful of city governments have also followed suit. This new legislation would make “Ban the Box” policies mandatory across the board for both public and private employers.

What is California’s FEHA?

California’s Fair Employment and Housing Act has been around since 1959. The original scope of California’s state anti-discrimination law was to help protect against discrimination in employment, housing, and combat sexual harassment in the workplace. This law is governed by the Fair Employment and Housing Council (FEHC).

There have been multiple amendments over the years to expand the scope of the FEHA. In more recent history, the FEHA was amended to include new provisions for employment and housing practices that include the EEOC’s guidance on the use of arrest and conviction records.

EEOC guidance on the use of arrest and conviction records

In 2012, the EEOC published guidance on the use of arrest and criminal conviction records to consolidate its stance on the use of criminal record data as part of the hiring process. The main purpose of this guidance was to help employers navigate Title VII of the Civil Rights Act during their employment process – also considering other anti-discrimination laws like the ADA, ADEA, GINA, etc.

The FEHC’s new rules for the use of arrest and conviction records is nearly identical to the EEOC’s guidance and builds on California laws that are already in place that enforce the same guidance. The main point for California employers, is that they need to be following the EEOC’s guidance and have it clearly implemented in their hiring policy.

In a nutshell:

  • Employers shouldn’t discriminate in their hiring practice based on protected groups (e.g. race, gender, national origin, etc.) unless job related and consistent with business necessity
  • Arrests that didn’t lead to a conviction shouldn’t be used as part of a hiring decision
  • Criminal records should be reviewed on a case-by-case basis (no automatic exclusions), considering the nature and gravity of the offense, how much time has passed, and the nature of the job held or sought.

For more detailed information on the EEOC’s guidance for criminal records, see my previous post “The EEOC and Criminal Records.” 

Reiterating with “Ban the Box”

The interesting thing about “Ban the Box” laws is that their main purpose is to also enforce the same EEOC guidance in a different way. By removing criminal conviction questions from applications, the goal was to keep employers from using the information to automatically disqualify an applicant – the key word being “automatic.” The EEOC’s guidance is very heavily focused on the need for employers to review criminal records on a case-by-case basis, so anything “automatic” conflicts with that stance.

The big picture – shifting focus away from “Tough on Crime”

If you are an employer or HR professional in California, you are most likely already aware of the need to update your policy to include these regulation updates from the FEHC. However, there are some important takeaways for employers outside of California as well.

Even if you are not in a jurisdiction that currently has some form of “Ban the Box” law, the EEOC’s guidance on the use of criminal records applies to all employers that are governed by federal or state anti-discrimination laws. Failure to adopt policies that follow the EEOC’s guidelines can lead to a discrimination case, regardless of “Ban the Box” laws or California’s FEHA.

As we’ve seen over the last five years, the “Ban the Box” movement isn’t going away. It has been growing at an exponential rate with more states, cities, and counties joining the list every month. As more areas adopt “Ban the Box” policies, they continue to step into more areas of the hiring process with inclusive hiring policies. This all seems to represent a change in thought away from the “tough on crime” mentality of the 80s and 90s.