Employers, beware. While California employers may ask applicants or employees certain questions which they perceive to be polite small talk, some of these questions could actually be unlawful under the California Fair Employment and Housing Act (FEHA) which prohibits discrimination in employment. FEHA regulations were amended on July 1, 2020, providing updated employer guidance that specified what pre-employment practices constitute age, disability and religious discrimination.
What should employers know?
The California Department of Fair Employment and Housing (DFEH) is the primary state agency that enforces California anti-discrimination laws. FEHA regulations include that California employers may not ask applicants or employees direct or indirect questions, whether in person, online or in writing, seeking information not job-related when the requested information could identify the person as part of a protected class under FEHA. These protected classes include:
- Race, color (including associated physical traits like hair texture)
- National origin, ancestry
- Religious creed
- Physical or mental disabilities
- Medical conditions, genetic information
- Marital status
- Sex, gender (including pregnancy, childbirth, breastfeeding and related conditions)
- Age (40 and older)
- Sexual orientation
- Gender identity, or gender expression
- Military or veteran status
To be unlawful, a question does not need to be as direct as asking someone whether they are married, or even what their religion or ethnicity is. Indirect questions that are facially neutral and do not expressly ask about protected information are also illegal if the answer to the question could identify the person as having a protected characteristic, such as asking whether they are available to work on Sundays.
Similarly, an employer may not ask for a picture of a job applicant as part of the application process because it could reveal protected characteristics like gender, gender expression, religion (if wearing clothing or using a grooming practice related to the standards of a religious faith), age, race, color, national origin, ancestry or disability.
The DFEH has provided an informative fact sheet for employers explaining the law and providing examples. (Note: this fact sheet – while very informative – is older so it may not be completely up to date.)
An exception may be a question (or photo request) that, while otherwise illegal, “is sufficiently related to an essential job function,” “consistent with business necessity” or a “bona fide occupational qualification.” For example, an employer may ask a pilot if she has epilepsy because it could be dangerous to have a seizure while operating a plane.
In addition, employers may conduct outreach to applicants who are “member[s] of … underrepresented protected class[es].” There are also exceptions related to data and statistical information.
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 of policy is neutral on its face and does not specifically target older works. To overcome this presumption, employers must show the practice is “job related and consistent with business necessity.”
Guidance from amended rules
The 2020 amendments help clarify when questions may cross the line, including:
- An employer may not ask about availability to work at certain times to uncover information about “religious creed, disability, or medical condition.” For example, an applicant may attend religious services every Sunday or have therapy or dialysis on Fridays. The question must indicate that the applicant does not need to disclose a scheduling issue “based on legally protected grounds,” such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”
- Subtle (and illegal) ways for an employer to screen for age, include imposing job requirements like “a maximum experience limitation; a requirement that candidates be ‘digital natives’ (individuals who grew up using technology from an early age); or a requirement that candidates maintain a college-affiliated email address.” An ad that a reasonable person would think deters people aged 40-plus is unlawful such as those seeking a preferred age range or using words like “young, college student, recent college graduate” and so on.
California employers should evaluate their interview, application and performance review questions in light of these standards. Employers should thoroughly train employees responsible for job marketing, recruitment, interviewing, onboarding, retention, performance reviews or those in any supervisory or human resources position on the kinds of inquiries that are illegal. An informed management team is an important part of regulatory compliance.
The attorneys at Duggan McHugh are available to assist employers with how to successfully avoid potentially discriminatory practices.