“Seeking Energetic Inexperienced Employees Available to Work Anytime” Is Unlawful: NEW DFEH Regulations Intended to Curb Discrimination
New pre-employments regulations are going into effect that may open employers up for discrimination claims. The Fair Employment Housing Act (FEHA) regulates employee protections as they relate to discrimination, retaliation, and harassment in employment. All employment provisions of the FEHA anti-discrimination provisions apply to all employers with five or more full-time or part-time employees. FEHA revised regulations clarifying which pre-employment practices may constitute age, disability, or religious discrimination. These new regulations go into effect July 01, 2020 but all employers’ employees should review its current practices to ensure it will comply by July 1st.
The regulation is intended to prevent employers from seeking protected information from an applicant. For example, an employer can no longer just ask about schedule restrictions because the restrictions may be due to religious reasons or related to a medical issue. Rather, employers are required to ask applicants about restrictions unrelated to a protected category. For example, “other than any time you may need off for religious activities, or related to a medical condition or disability, are there certain days or times that you are unavailable to work?”
This change will apply to interview questions and to applications, both online and/or paper. Employers should update all applications that request availability to preclude protected activities listed above. Please note, this practice may not be considered unlawful if it is job related and consistent with business necessity, but this decision should not be made unilaterally, and employers should seek counsel from an experienced employment law attorney.
In addition to religious and disability discrimination, age is also a focus. Employers have been cautioned for years to not request an applicant’s age, year of graduation or birthday due to the potential of age discrimination. The new regulation now codifies this rule and employers are prohibited from seeking this information on an application. This applies to written or oral inquiries.
Finally, any advertisement that would likely rule out older applicants is also deemed unlawful and could create liability for the employer. Terms such as “fresh” “new college graduate” “digital natives” “boys or girls” “young” etc. are all terms that are generally applied to younger applicants. An employer can be liable for these advertisements whether they discriminate in hiring because these advertisements are considered “deterrents” for applicants over 40 and these terms are considered to express a “limitation” that is age based.
As with religion and disability discrimination, an employer has a defense if there is a bona fide occupational qualification (“BFOQ”) for the position at issue. However, there is a narrow legal definition for this type of position, and the employers desire to make it a BFOQ is not enough. Employers should seek legal advice prior to assuming a position meets a BFOQ.
If you have any questions about available defenses, need assistance updating your application or need a review of your marketing material, please call the employment law experts at McKague Rosasco LLP.
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