California follows federal lead in limiting employment screening

A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination.  The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.

The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII.  Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”

The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.

Both the California regulation and the EEOC guidance follow from the “disparate impact” theory of liability that applies both to the FEHA and Title VII.  It allows an individual to proceed with an employment discrimination claim absent a showing of individual disparate treatment if he or she can show that a facially neutral employment practice adversely impacts a protected class, such as a particular racial group.  Because African Americans and Hispanics are more likely than other racial groups to have a history of criminal justice involvement, disparate impact theory has been used in both state and federal courts to challenge criminal history screening practices, especially blanket bans on hiring individuals with any conviction history at all.

Although claims of disparate impact discrimination based on criminal history screening practices are not new, we are aware of no jurisdiction other than California that has codified such a basis for liability. Even the EEOC’s position is stated in the form of a “guidance,” and not codified in its official regulations. (Of course, the EEOC’s role in enforcing violations of Title VII gives its guidance significant weight.)

The new regulation also restates a number of preexisting prohibitions on criminal history consideration that are imposed by the California’s Labor Code.  Among these is a general prohibition on inquiries into or consideration of arrests not resulting in conviction, non-conviction dispositions (including referral to, or participation in, diversion programs), arrests and dispositions that occurred while subject to juvenile court jurisdiction, and non-felony marijuana possession convictions more than two years old.

More information about the law on criminal history discrimination in employment and licensing in California is available on the state’s Restoration of Rights Project profile, available here.

Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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