- California Enacts New FEHA Regulations for Pre-Employment Practices
- Starting on July 1, 2020, FEHA (Fair Employment and Housing Act) regulations will specify what pre-employment practices (i.e. pre-employment inquiries, job applications, and advertisements) constitute age, disability, medical condition, and religious discrimination.
- Pre-Employment Inquiries and Job Applications
- Employers cannot request scheduling information to ascertain an applicants religious creed, disability, or medical condition.
- Any scheduling inquiry must clearly communicate that the applicant does not 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?”
- The new regulations also address Age Discrimination in job applications and pre-employment inquiries. For example, prohibited pre-employment inquiries include asking for an applicants’ age, date of birth, or graduation date.
- Employers cannot request scheduling information to ascertain an applicants religious creed, disability, or medical condition.
- (2) Recruiting and Advertising
- The new regulations prohibit any advertising or recruiting that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over,” unless age is a necessary occupational qualification for the position.
- For example, employers cannot include maximum experience limitations and may not use terms like “young,” recent college graduate,” or “digital native,” which would imply the person had grown up using technology.
- (3) Presumption of Age Discrimination
- Under the new regulations, there is a presumption of age discrimination for practices that have an adverse impact on applicants and employees age 40 and over, even if the practice or policy is on its face neutral and does not specifically or expressly target older workers.
- To rebut this presumption, employers must show that the practice is “job related and consistent with business necessity.”
