Criminal Histories Inquiries: California Fair Employment and Housing Act

A relatively long-established boundary on the subject of job interviews is the criminal history of job applicants. Five years ago, the U.S. Equal Employment Opportunity Commission set forth its enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. In a nutshell, the EEOC guidance asserts that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. This summer, the California Fair Employment and Housing Council (FEHC) adopted updated regulations largely consistent with the EEOC’s enforcement guidance.

To avoid a claim of discrimination, an employer should do the following (adapted from EEOC guidance):

• No general ban. Eliminate policies or practices that exclude applicants from employment based on any criminal record.
• Training. Train managers, hiring officials, and decision-makers about FEHA and Title VII and their prohibition on employment discrimination.
• Written policies. Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal history. This includes the following:
  1. Identify essential job requirements and the actual circumstances under which the jobs are performed;
  2. Determine the specific offenses that may demonstrate unfitness for performing such jobs;
  3. Determine the duration of exclusions for criminal convictions based on all available evidence;
  4. Record the justification for the policy and procedures; and,
  5. Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with FEHA and Title VII.
• Limited inquiries. When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Confidentiality. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

In addition to concerns regarding claims of discrimination, under the state’s regulations (2 CCR § 11017 and 2 CCR § 11017.1), except if otherwise specifically permitted by law, employers are prohibited from considering the following types of criminal history, or seeking such history from any employee, applicant or a third party, when making employment decisions such as hiring, promotion, training, discipline, lay-off and termination:

• An arrest or detention that did not result in conviction;
• Referral to or participation in a pretrial or post-trial diversion program;
• A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law;
• An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law; and,
• A non-felony conviction for possession of marijuana that is two or more years old.

This Update is provided to our clients, business associates and friends for informational purposes only. Legal advice should be based on your specific situation and provided by a qualified attorney.