Noah Lebowitz
As of July 1, 2017, two new important sets of regulations enforcing the Fair Employment & Housing Act (“FEHA”) will have taken effect: (1) Consideration of Criminal History in Employment Decisions, and (2) Regulations Regarding Transgender Identity and Expression. These two sets of regulations were promulgated by the California Fair Employment & Housing Council (“FEHC”) over the course of 2016 and early 2017. Over the past four years, the FEHC has engaged in a remarkable amount of work updating various sections of the FEHA employment regulations. All stakeholders owe the FEHC a huge amount of gratitude for the arduous work that is required to ensure the adoption of appropriate and useful regulations.
CELA participated in the public review and comment process of these regulations through the work of the organization’s FEHC Regulations Task Force. The Task Force is a group of volunteers which forms, disbands, and re-forms to address each new set of regulations the FEHC considers pursuant to its rulemaking function in regard to the employment sections of the FEHA. Task Force members engage in a painstaking review of all proposed amendments and further modifications to proposed regulations, draft public comment letters on behalf of CELA, and appear at FEHC hearings and meetings to offer public comment through testimony. CELA’s guiding principle in engaging in this process is to ensure the regulations provide easy to read, easy to understand, legally accurate guidance for all FEHA stakeholders. Overall, CELA members put in a significant amount of time in this volunteer effort.
All written comments submitted by CELA to the FEHC can be viewed on the Members Only section of the CELA website, and video of all meetings and hearings held by the FEHC can be viewed at the FEHC’s website: www.dfeh.ca.gov/FEHCouncil.htm. The full text of the new regulations and the accompanying explanatory documents are similarly available at that same website.
What follows are some of the highlights of each set of regulations. I strongly encourage all CELA members to review the new regulations in full, become familiar with them, and implement them into all cases going forward. Because the FEHC has no authority to legislate (i.e., it may only issue regulations enforcing existing law) (see Cal. Gov. Code, § 11349 et seq. [California Administrative Procedures Act]) there should be no issues regarding “retroactivity” of their application into pending cases
Consideration of Criminal History in Employment Decisions
In 2012, the EEOC published its Enforcement Guidance regarding the use of criminal conviction history in employment decisions. That Guidance document provided part of the backdrop behind the FEHC’s rulemaking process. The EEOC outlined the issue as follows:
In the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population. … Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men. (https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm)[1]
With the issue defined, the FEHC went about promulgating regulations relying on a bevy of existing authority outlining disparate impact.
2 Cal. Code Regs. § 11071.1
Section 1107.1 – an entirely new section of the FEHA regulations – contains the entire scope of the new regulations. It is important to remember that the FEHC has jurisdiction exclusively to enforce the statutory provisions set forth in the FEHA. It has no jurisdiction over provisions of the California Labor Code or local ordinances. So, existing statutory provisions relating to ‘ban-the-box’ or related issues found in the Labor Code or local ordinances are not addressed or impacted by these regulations. Rather, these regulations address the theories of (1) use of criminal histories that result in a disparate impact of populations protected by the FEHA, and (2) use of criminal histories that result in disparate treatment of individuals protected by the FEHA. The vast majority of the new regulations are focused on providing guidance on how the latter theory is to be applied.
The focus of Section 1107.1 is spelled out in the introduction found at subsection (a).
Employers are prohibited under the [FEHA] from utilizing . . . criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the [FEHA] that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.
Employees who have been affected adversely by a criminal history screen in the workplace (e.g. refusal to hire, involuntary transfer/demotion, termination, etc.) may establish a prima facie case of disparate impact by use of “[s]tate or national-level statistics showing substantial disparities in the conviction records of one or more categories enumerated in the Act. . .” (Cal. Code Regs., tit. 2, § 11071.1, subd. (d).) Use of these statistics raises a rebuttable presumption of unlawful adverse impact. The employer may overcome this presumption by demonstrating “that there is a reason to expect a markedly different result” based on the particularized circumstances of the job or job market. (Id.)
If the employer is unsuccessful in rebutting the presumption, the prima facie case is established and the burden shifts to the employer to establish that the policy or practice of relying on a criminal history screen is both job-related and consistent with business necessity. (Id. at § 11071.1, subd. (e).) To meet this burden, the “employer must demonstrate that the policy or practice is appropriately tailored” considering various factors laid out in the regulations. (Id. at § 11071.1, subd. (e)(1).)
The regulations further describe the burden of demonstrating that the use of criminal history screen is “appropriately tailored to the job.” If the employer is using the screen as a “bright-line” rule, it must show that it: (1) properly distinguishes “between applicants or employees that do and do not pose an unacceptable level of risk,” and (2) that the type of convictions being used in the screen “have a direct and negative bearing on the person’s ability to perform the duties or responsibilities related to the employment position.” (Id. at § 11071.1 subd. (e)(2)(A).) Also, if the conviction for a particular applicant or employee is more than seven years old, there is a rebuttable presumption that the screen is not appropriately tailored. (Id.) The employer may alternatively show the use of a criminal history screen is appropriately tailored by showing it implemented an “individualized assessment” of its use in a particular situation. (Id. at § 11071.1. subd. (e)(2)(B).) That individualized assessment requires: (1) notice to the employee, (2) an opportunity to show why the screen should not be implemented against them, and (3) consideration by the employer as to whether additional information may justify an exception. (Id.) Finally, regardless of the method used for implementing the criminal history screen, the employer must provide the applicant or employee notice and an opportunity to demonstrate the conviction information being used is factually inaccurate. (Id. at § 1107.1, subd. (e)(3).)
If the employer is successful in demonstrating that the criminal history screen is job-related and consistent with business necessity – or that the screen is mandated in order to comply with federal or state laws, regulations, or licensing requirements (Id. at § 11071.1, subd. (f)) – the burden then shifts back to the employee. The employee’s burden is to show that “there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice. . .” (Id. at § 11071.1, subd. (g).)
Regulations Regarding Transgender Identity & Expression
The regulations enforcing the FEHA’s protections based on gender identity and expression are found in the section of the existing regulations related to sex discrimination (i.e., Article 5 of Title 2 of the Code of Regulations).[2]
The new regulations make some important modifications to the “Definitions” section. The definitions of both “gender expression” and “gender identity” have been updated to make them more descriptive and accurate. (Cal. Code Regs., tit. 2, § 11030, subd. (a), (b).) Gender expression has been updated to include the concept of “perception.” Gender identity’s new definition includes the following language: “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.” (Id. at § 11030, subd. (b).) The new language importantly clarifies that the FEHA protections include non-binary gender applicants or employees.
Also new to the regulations is the definition of “Transitioning.” The FEHC spent a great deal of time and energy making sure this definition comprehensively addressed the aspects of gender transitioning. The new language reads as follows:
“Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures. (Id. at § 11030, subd. (f).)
Section 11034 “Terms, Conditions, and Privileges of Employment” contain the vast majority of the substantive modifications. Subsection (e) “Working Conditions” contains some new regulations providing guidance regarding availability and use of facilities in the workplace, including allowing employees to use facilities corresponding to their gender identity or expression regardless of assigned sex at birth, requiring employers to use gender-neutral signage if only single-occupancy facilities are available, and that employees are not required to provide any proof – medical or otherwise – of gender identity. (Id. at §§ 11034, subd. (e)(2)(A)-(E).)
The FEHC has also added two entirely new subsections to Section 11034. Subsection (h) prohibits inquiries into applicants’ or employees’ gender, gender identity, or gender expression. This prohibition includes job applications. This regulation clarifies having a box on the mandatory section of a job application asking for the applicant to identify their gender is unlawful. The regulation also makes clear that employers are permitted to ask the question on a voluntary section of an application like those used to gather statistics. (Id. at § 11034, subd. (h).) Importantly, subsection (h) also requires employers to abide by an employee’s request to be identified by a preferred name or pronoun. (Id. at § 11034, subd. (h)(3).)
New subsection (i) “Additional Rights” clarifies several rights. Included in that subsection are the declarations that it is unlawful to: (1) “inquire about or require documentation or proof” of sex, identity or expression, (2) deny employment “based wholly or in part” or gender identity or expression, and (3) “discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.” (Id. at § 11034, subd. (i)(1)-(4).)
Noah D. Lebowitz is a partner at Duckworth Peters Lebowitz Olivier LLP in San Francisco where he represents individuals in discrimination, wrongful termination, retaliation, defamation, breach of contract cases as well as contract/severance negotiations. Noah is a past member of the CELA Executive Board and the Executive Committee of the Labor & Employment Section of the State Bar. Noah is currently a member of the Executive Committee of the Labor & Employment Section of the Bar Association of San Francisco. Reported cases include McCollum v. XCare.net, Inc. (N.D. Cal. 2002) 212 F.Supp.2d 1142; Ellis v. San Francisco State Univ. (N.D. Cal. 2015) 136 F.Supp.3d 1140; and Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686. In addition to his practice, Noah serves as a Judge Pro Tem with the San Francisco Superior Court hearing discovery disputes in the Court’s Law & Motion Department
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[1] For anyone looking to become more familiar with the background information and statistics related to criminal histories and employment, the National Employment Law Project (“NELP”) (www.nelp.org) is a great resource for all that information.
[2] A note on terminology at the outset. The title of the regulations (“Transgender Identity & Expression”) is actually a bit of a misnomer. The provisions of the FEHA being addressed by these regulations are enforcing the “gender identity” and “gender expression” provisions of the law. The FEHC was alerted to this issue of nomenclature during the rulemaking process, agreed the title was inaccurate, but decided to leave it as is because to change the name would require the entire process to begin over which all involved agreed was undesirable.